ABDUL MOBEEN LAKHO, J.---Being aggrieved and dissatisfied with the impugned judgment dated 28.11.2018, passed by the learned Anti-T errorism Court No.XVII, Karachi, in Special Case No. 100/2017 (Old Special Case No.2369 of 2016), arising out of FIR No.146/2016 for the offence under sections 4/5 Explosive Substances Act, 1908 read with 7 ATA, 1997, and Special Case No.101/2017 (Old Special Case No.2370 of 2016), arising out of the FIR No.147/2016 for the offence under section 23(1)(a) Sindh Arms Act, 2013, registered at Police Station Nabi Bux, Karachi; whereby the appellant was convicted under section 265-H(2), Cr .P.C. and sentenced as under:-- {a} For the offence under section 6(2)(ee) of ATA 1997 punishable under section 7(1)(f f) of ATA, 1997 read with Sections 4/5 Explosive Substances Act, 1908 and sentenced to undergo R.I. for 14 years. {b} For the offence under section 23(1)(a) of Sindh Arms Act, 2013, and sentenced to undergo R.I. for 05 years and to pay a fine Rs.25,000/-, in default whereof sentenced to suf fer SI for one (01) month more.
However , all the sentences were ordered to run concurrently except the payment of fine. The benefit in terms of section 382-B, Cr .P.C. was also extended to the appellant, the appellant has filed this appeal against conviction.
2. The brief facts of the prosecution case as per FIR are that complainant/Inspector Muhammad Abbas of Rangers while performing duty searching for crimi nals/terrorists on the night of 6th and 7th November , 2016 he along with ranger personnel namely , SIP Muhammad Younus, SIP Ajeeb ur Rehman and others reached within the jurisdiction of PS Nabi Bux, where police party of Police Station Nabi Bux, headed by ASI Azeem Rajpar , joined them in Government Mobile-1 No.SPC-537. It was about 0100 hours when they reached at Noman Street, Plaza Quarters, Rimpa Plaza, Karachi, when they saw a suspect, wearing pant shirt, coming on motorcycle without number from M.A. Jinnah Road. While taking U-Turn, they got him stopped, who on inquiry disclosed his name as Syed Mehroz Mehdi Zaidi alias Mehdi Badshah son of Syed Hassan Muhammad Zaidi. His personal search was conducted in presence of witnesses Sub-Inspector Muhammad Younus and Sub-Inspector Ajeeb ur Rehman and upon personal search a light green colour bag was recovered. On opening the same one plastic thelie containing two KGs ball bearings, 05 meters of prime wire of orange colour , one ball bomb, 02 detonators in a black colour plastic shopper and an unlicensed 30 bore pistol without number black colour butt loaded with 10 live bullets in magazine were recovered. On his further body search original CNIC No.40101-0623602-1 and cash of Rs. 200/- were also recovered from pocket of his pant. The recovered explosive material, weapon and ammunition were taken into custody and sealed at spot under a mash irnama and the accused was arrested accordingly for the offence under section 4/5 Explosive Substances Act, 1908 and 23(1)(a) of Sindh Arms Act, 2013. The motorcycle "Super Star- 70", Engine No. 713028, Chassis No.76501 1 was also taken into custody . Thereafter , the accused and the recovered property were brought at Police Station Nabi Bux where supra FIRs were registered against him on behalf of the State.
3. Pursuant to registration of FIR, usual investigation was conducted and the challans were submitted before the Court of competent jurisdiction under the above referred Sections, whereby the appellant was sent up to face the trial.
4. Joint trial was ordered in terms of Section 21-M of Anti-T errorism Act, 1997.
5. The learned trial Court framed a joint charge against the appellant, to which he pleaded not guilty and claimed to be tried.
6. At trial, the prosecution examined PW-1/Judicial Magistrate Syed Imran Imam Zaidi at Ex.7, he produced original confessional statement of the accused. at Ex.7/A (11 pages) along with annexed photograph, copy of CNIC of accused and envelope. PW-2/Incharge Bomb Disposal Unit South Ghulam Mustafa Arian at Ex.8, he produced the entry at Ex.8/A, Clearance Certificate at Ex.8/B, Letter of I.O. at Ex.8/C and Final Inspection Report at Ex.8/D.
C.W-1/Inspector SIO Mochko Muhammad Saleem Khan Marwat at Ex.9, he produced report at Ex.9/A, Entry 06 at Ex.9/B. PW-3/Ranger Inspector Headqu arter Muhammad Abbas at Ex.10, PW-4/ASI Muhammad Abdullah at Ex.11, he produced the documents at Ex.11/A to 11/C. PW-5/Sub-Inspector Range rs Muhammad Younus at Ex.12.
PW-6/Inspector Muhammad Saleem Khan at Ex.13, who produced documents at Ex.13/A to Ex.13/M4. PW- 7/Inspector Muhammad Saleem Khan at Ex.13, who produced documents at Ex.13/A to Ex.13/M4 respectively .
Lastly , prosecution closed its side vide statement at Ex.14.
7. The statement of the accused was recorded under section 342, Cr.P.C. at Ex.15, wherein he denied the prosecution case and professed his false implication at the hands of police and rangers and also stated that he was arrested from outside of his house on 05.11.2016 by the Rangers.. The appellant opted not to make a statement on oath under section 340(2), Cr .P.C. and did not produce any witness in his defence.
8. The trial Court, on conclusion of trial, hearing the parties and assessing the evidence on record, found the appellant guilty of the offence charged with and recorded conviction and sentence as stated above, vide impugned Judgment dated 28.1 1.2018 and hence the appellant has filed these appeals against his conviction.
9. It is contended on behalf of the appellant that he is innocent and has been falsely implicated in this case with mala fide intention and ulterior motives. It is next submitted that no incriminating evidence has been brought on record despite which the learned trial Court recorded conviction against the appellant. It is also submitted that nothing incriminating has been recovered from the possession of appellant and the recovery shown against him is foisted one. The learned counsel submitted that all the witnesses examined by the prosecution are police officials and no private and independent witness has been produced to corroborate the police officials. He further added that the confessional statement relied upon by the trial Court was neither voluntary nor in accordance with the law.
The learned counsel lastly submitted that prosecution has failed to establish its case against the appellant beyond shadow of reasonable doubt and prayed for his acquittal by extending him the benefit of the doubt. In support of his contentions he has placed reliance on the case of Khalid Javed and others v. The State (2003 SCMR 1419 ), lkramullah and others v. The State (2015 SCMR 1002 ), Muhammad Pervez and others v. The State and others (2007 SCMR 670), Ghous Bux V. Saleem and 3 others (2017 PCr.LJ 836), Naseb Zada v. The State and another (2019 YLR 2157 ), Abdur Rehman v. The State and another (2018 YLR 1629 ) and Jameel and another v . The State 2019 YLR 516 ).
10. Learned Special Prosecutor Rangers contended that all witnesses examined by the prosecution have supported the case of the prosecution and implicated the appellant with the commission of offence, that the appellant has confessed to the, crime, that he was arrested on the spot when a huge amount of explosives and bomb making materials were recovered from him and that the learned trial Court has rightly convicted the appellant and the learned counsel for the appellant has failed to point out any illegality or infirmity in the impugned judgment and prayed for dismissal of the captioned appeals.
11. We have heard the arguments of learned counsel for appellant and the Special Prosecutor Rangers and perused the entire material available on record with their able assistance.
12. The case mainly rests upon the confession allegedly made by the appellant before a Magistrate. A bare perusal of the record reveals that that the learned Magistrate while recording confessional statement of appellant failed to discharge his duty in accordance with law and did not put relevant question to the appellant to ascertain that the confession is voluntarily , true and without any inducement. Hence, such a confession lost its evidentiary value for the following reasons.
(a) Confession can be made basis for conviction if it was actually made before the competent forum and was made voluntarily and was true and thereafter custody of the accused was subsequently handed over to Jail authorities.
However custody in this case was returned to Police which detracts from its voluntariness. Furthermore, there is also no explanation furnished for a delay of nine- days in recording of the confessio nal statement. In the case titled "Muhammad Parvez and others v. The State " reported as 2007 SCMR 670 the Hon'ble apex court has held that delay of four days in recording such statement could not be made basis for conviction of the accused.
(b) The provisions contained in Section 364, Cr.P.C. are mandatory in nature concerning how a confession be recorded by a Magistrate. The questions put to the accused and the answer given by him shall be distinctly and accurately recorded but in the case in hand, the confession of appellant was recorded in cursory and mechanical manner and a number of crucial questions and information which go to the heart of the voluntariness of the confession were not put to the appellant. Such as the fact that the confession can be used in evidence against him at trial. Reliance can be placed on the case law reported as 1987 PLD FSC 43 and the relevant portion is reproduced as under: "Confession how to be recorded. , Accused not warned immediately before recording confession held not voluntarily . These questions must be asked before recording confession.
1. How long have you been with the police?
2. Has any pressure been brought to bear upon you to make the confession?
3. Have you been threatened to make the confession?
4. Has any inducement been given to you?
5. Have you been told that you will be made an approver?
6. Why are you making this confession?
Hand cuff should be removed. Police sent out of Court room and the accused given time to ponder and explained that he is not bound to make a confession if he makes it, it will be used against him, whether he makes a confession or not he will not be sent back to police custody?"
13. The provisions of Section 364, Cr.P.C. are mandatory and any illegality occasioned thereof is not curable in view of the case law B reported as 1998 MLD 288 Federal Shariat Court titled "Gul Jehan v . State ".
14. As discussed hereinabove, the prosecution has not proved that the confession was made voluntarily and as such we place no reliance on it.
15. It is also of great significance that Pakistan Rangers issued a press release dated 05.11.2016, showing the arrest of the appellant. The question then arises that while the appellant was already in custody on 05.11.2016 how could he have committed the offences in the FIRs on 06.11.2016 when he was already in custody . This fact also renders the entire case of the prosecution extremely doubtful.
16. Thus, we are of the opinion that the prosecution has failed to discharge its burden of proving the guilt of the appellant beyond a reasonable doubt. The Hon'ble Supreme Court of Pakistan has held that for extending the benefit of doubt in favour of an accused, it is not necessary that there may be many circumstances creating doubt, if there is a circumstance which create reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to such benefit not as a matter of grace and concession, but as a matter of right. In this respect reliance is placed on the case of Tariq Pervez v . The State (1995 SCMR 1345 ).
17. Thus by extending to the appellant the benefit of the doubt we hereby allow these appeals, set-aside the conviction and sentence recorded by the learned trial Court in the impugned judgment and acquit the appellant of the charge. The appellant shall be released forthwith if not required to be detain ed in connection with any other custody case.
18. The above appeals stand disposed of in the above terms.