RAJA SHAHID MEHMOOD ABBASI, J.---Gohar Zaman and Umer Ali Khan , appellants, were tried by the learned Judge, Anti-T errorism Court-I, Rawalpindi in case FIR No.283 dated 07.10.2015 registered under sections 4/5 of The Explosive Substances Act 1908 read with section 7 of Anti-T errorism Act, 1997, at Police Station Saddar , Hassan Abdal, District Attock, who vide judgment dated 15.05.2017 convicted and sentenced the appellants as under:- i) Under section 7(f f) of ATA, 1997: Fourteen years R.I. ii) Under section 5 of E.S.A, 1908: Seven years R.I.
Benefit of section 382-B, Cr.P.C. was extended to the appellants. Both the sentences were ordered to run concurrently .
2. Precisely , the facts of the case as narrated in the FIR (Ex.PD/1) lodged on the complaint (Ex.PD) of Gul Faraz, SI (PW.5) are that on 07.10.2015, he along with other police officials was prese nt at the exit picket Burhan in connection with the checking of illicit arms. Spy informer informed that one vehicle Toyota Hiace having explosive substance was coming from Sawabi side. Meanwhile, at about 4:40 PM, a Hiace bearing number LZR 7133 blue colour arrived from motorway and entere d into G.T Road which was stopped with the help of other officials. Two persons were boarded in the vehicle who on interrogation disclosed their names as Gohar Zaman son of Meer Zaman and Umar Ali Khan son of Gul Saeed. The vehicle was searched and from the back side of the vehicle, 05 cartons were recovered upon which "Wah Noble Class 3" was written. The cartons were checked and from each carton 188 Y-box explosive substance was recovered, each Y-box was weighed and found 125 grams each. All weighed was found as 125 kilogram. From further search of vehicle, 16 boxes of detonators were recovered on which "Wah Noble Class 3" was written. Every box was found having 100 detonato rs. From all the boxes total 1600 detonators were recovered. From further search of 25 shopper white colour , every shopper consisted upon 100 meter safety fuse wire total 2500 meter were recovered which were taken into possession by the I.O. All the articles were taken into possession vide recovery memo Ex.PB.
3. After receipt of challan against the appellants, the charge was framed against them to which they pleaded not guilty and claimed trial. In order to prove its case the prosecution got examined as many as 05-PWs in all to bring home the guilt of accused/ appellants. Muhammad Deen (PW.1) is the Bomb Disposal Commander posted at Civil Defence Attack; Moharrar Nasir Mehmood 918/HC (PW.2) kept two sealed parcels said to contain safety fuse wire 6 inch and 10 gram explosive substance as well as other property in police malkhana; Tariq Mehmood, AS1 (PW.3) is the recovery witness; Muhammad Anwar , SI (PW.4) is the Investigating Officer who stated the various steps taken by him during the investigation and Gul Faraz, SI (PW.5) drafted the complaint (Ex.PD) as well as attested the recovery memos.
4. The statements of the appellants under section 342, Cr. P.C. were recorded wherein they denied the allegations levelled against them and claimed their innocence. The appellants opted not to appear as their own witnesses under section 340(2), Cr. P.C. in disproof of the allegations levelled against them by the prosecution nor opted to produce defence evidence.
5. Upon completion of the trial the learned trial court found the case against the appellants to have been proved beyond any shadow of doubt and thus convicted and sentenced them as mentioned above. Hence the appeal in hand.
6. Learned counsel for the appellants inter alia, contended that the appellants were falsely involved in the case; that there is nothing on the record to connect the appellants with the alleged offence; that the impugned judgment is result of surmises and conjectures; that statements of the PWs on the salient features of the case are so contradictory; that the prosecution failed to point out that what method was adopted to prove that the recovered material was explosive; that the prosecution has not been able to bring home charge against the appellants beyond any shadow of doubt, hence the appellants are entitled to clean acquittal.
7. On the other hand, learned Deputy District Public Prosecutor vehemently opposes the contentions raised by the learned counsel for the appellant and, inter alia maintained that prosecution has proved its case to its hilt; that the appellants are involved in heinous offence and the judgment of the learned trial court is well reasoned; that the eye- witnesses of the case remained consistent and they have no previous enmity with the appellants to falsely implicate them; that the appellants deser ves no leniency; that witnesses of ocular account are natural witnesses; and that appellants were apprehended red handed from the spot. Finally prayed that the appeal filed by the appellants be dismissed.
8. We have heard the learned counsel for the appellants as well as learned Deputy District Public Prosecutor and scanned the record with their able assistance.
9. According to the prosecution case on 07.10.2015, Gul Faraz, SI (PW.5) along with other police officials, on the tip of spy information, apprehended the appellants from a Toyota Hiace bearing number LZR 7133 blue colour arrived from motorway side at the exit picket Burhan on G.T. Road. Upon search of the vehicle from the back side, 05 cartons containing 188 Y-box explosi ve substance was recovered, each Y-box was weighed and found 125 grams and total explosive was found weighing 125 kilogram. From further search of vehicle, 16 boxes of detonators were recovered on which "Wah Noble Class 3" was written. Every box was found having 100 detonators. From all the boxes total 1600 detonators were recovered. From further search of 25 shopper white colour , every shopper consisted upon 100 meter safety fuse wire total 2500 meter were recovered. All the articles were taken into possession vide recovery memo Ex.PB. In order to bring home the guilt of the appellants the prosecution got examined five witnesses out of which Tariq Mehmood, ASI (PW.3), Gulfraz, SI, complainant (PW.5) and Muhammad Anwar , SI, investigating Officer (PW.4) were the star witnesses of the prosecution but we have observed certain admissions, contradictions and improvements in the testimonies of said witnesses.
10. The case of the prosecution is that a large quantity of the explosive material was recovered from the vehicle being driven by Gohar Zaman, appellant whereas Umer Ali Khan, appellant was sitting on the front seat. According to the statement of Moharrar Nasir Mehmood 918/HC (PW.2) that on 07.10.2015 Muhammad Anwar , SI handed over to him two sealed parcels said to contain safety fuse wire 06 inch and 10 gram explosive substance as well as other articles and on 08.11.2015, he handed over the two sample parcels to Muhammad Anwar , SI for its onward transmission to the office of PFSA, Lahore. Similarly , Tariq Mehmood, ASI (PW.3) deposed that on 07.10.2015, he along with other police officials apprehended the appellants and got recovered the prohibited material, which was attested by him. Likewise, Muhammad Anwar , SI (PW.4) deposed that on 07.10.2015 he lodged crime report (Ex.PD/1) on the basis of complaint (Ex.PD) received through Riffat Hayat 838/C. According to Gul Faraz, SI (PW.5) who recorded the complaint (Ex.PD) deposed that on 07.10.2015 the appellants were apprehended by them while travelling in a Toyota Hiace bearing No.LZR-7133 along with prohibited material. The report of Muhammad Deen, Bomb Disposal Commander , Civil Defence, Attock (Ex.P A) sugg ests that the prohibited material was examined by him on 07.10.2015. However , said Muhammad Deen, Bomb Disposal Commander while appearing as PW.1 stated otherwise that on 10.10.2015 at about 08:00 PM police called him and he examined the explosive substance which was manufactured by Nobel Wah Factory and prepared analysis report. From the above it is evident that according to the prosecution witnesses as well as report Ex.PA, the appellants were apprehended on 07.10.2015 and the explosive material was examined on the same day, however , Muhammad Deen, BDC while appearing as PW.1 stated that on 10.10.2015 he inspected the prohibited material, therefore, there is clear contradiction in the deposition of date of inspection of the prohibited material which questions the authenticity of the report Ex.PA. Even otherwise, the statements of the above stated prosecution witnesses are absolutely silent about the fact of preparing samples of explosive material at the spot, which were to be sent to the office of Punjab Forensic Science Agency , Lahore for analysis, which fact further create dent in the prosecution story . It is also a circumstance that the prosecution has also failed to bring on record any evidence that the appellants had any nexus or connection with any proscribed /banned organization. We have further noted that the instant case was investigated by an Assistant Sub Inspector , in clear violation of section 19 of the Act ibid, which ordained that the offences under this Act shall be investigated by a police officer not below the rank of Inspector , which aspect makes the prosecution case doubtful. After considering all the pros and cons of the case, we have come to an irresistible conclusion that the prosecution has failed to prove its case against the appellants beyond any shadow of reasonable doubt. The prosecution has relied upon discrepant: contradictory and flimsy evidence which is also full of dishonest improvements while implicating the accused/appellants and carving the story of their own choice based on their whims. The learned trial court has misread the evidence on record in violation of the dictum laid by the Superior Courts in various pronouncements; therefore, conviction of the appellants is not sustainable in the eyes of law. There is no cavil to the proposition that if there is a single circumstance which creates reasonable and cogent doubt regarding the prosecuti on case, the same is sufficient to extend benefit to the accused, whereas, the instant case is replete with circumstances which have rendered serious doubts about the prosecution story . In the case of Tariq Pervez v. The State (1995 SCMR 1345 ), the Hon'ble Supreme Court of Pakistan at page 1347, was pleased to observe as under:- "....The concept of benefit of doubt to an accused person is deep-rooted in our country . For giving him benefit of doubt, it is not necessary that there should be many circumstances creating doubts. If there is a 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 matter of grace and concession but as a matter of right.
11. For what has been discussed above, we accept Criminal Appeal No. 712 of 2017 filed by Gohar Zaman and Umer Ali Khan appellants, and set aside their conviction and sentence recorded by the learned trial court and acquit them out of the charge by extend ing them the benefit of doubt. The appe llants are in jail. They shall be released forthwith from jail, if not required to be detained in any other case. The case property shall be destroyed in accordance with law , as observed by the learned trial court, in the judgment impugned.