ABDUL MOBEEN LAKHO, J.---Through instant appeal, Asadullah appellant has challenged judgment dated 23.09.2020, whereby, the appellant was convicted by learned Anti-Terrorism Court No. IV, Karachi Division for offence under section 5 of the Explosive Substances Act, 1908 and sentenced to three years R.I. Appellant was also convicted under section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to three years R.I and to pay fine of Rs.5000/-. In case of default, he was ordered to SI for one month more. All the sentences were directed to run concurrently. Appellant was extended benefit of section 382-B, Cr.P.C.
2. The facts of prosecution case as narrated in the FIR are that on 29.10.2019 at 6:30 a.m., SI Rana Nisar Ahmed received spy information regarding presence of one suspicious person. Police party reached at the pointed spot and apprehended a person, who on inquiry, disclosed his name as Asadullah. SI Rana Nisar Ahmed conducted his personal search and recovered one hand grenade from his right pocket of trouser as well as one Kalashnikov without number loaded with 10 bullets.
Kalashnikov, bullets and cash were sealed on spot accused was arrested such memo was prepared in presence of mashirs. Accused and case property were brought at police station Kalakot, where SIP Rana Nisar Ahmed lodged FIR No. 279/2019 under sections 4/5 Explosive Substances Act, 1908 read with section 7 of Anti-Terrorism Act, 1997 and FIR No.280/2019 under section 23(1)(a) of Sindh Arms Act, 2013 against accused on behalf of State.
3. After registration of the FIRs, the investigation was entrusted to Inspector Muneer Ahmed (PW-05) on 29.10.2019. On the same day, I.O. inspected place of incident on the pointation of SIP Rana Nisir Ahmed/complainant and prepared such memo in presence of mashirs, recorded statements of witnesses under section 161, Cr.P.C. On 30.10.2019 weapon was sent to FSL and received its report, Investigating Officer received final report of Bomb Disposal Unit and after completing usual investigation submitted charge sheet against the accused in aforesaid crimes/cases.
4. Learned trial Court ordered for joint trial as provided under section 21-M of the Anti-Terrorism Act, 1997.
5. The trial Court framed charge against accused at Ex.04, to which accused pleaded not guilty and claimed to be tried.
6. At the trial, prosecution examined SI Rana Nisar Ahmed (PW-01) at Ex.5, Muhammad Amir Rajput of BDU East Zone Karachi (PW-02) at Ex.7, Malik Azad Khan (PW-03) at Ex.8, Inspector Shahzad Saleem (PW-04) at Ex.9 and Inspector Muneer Ahmed Investigating Officer at (PW-05) at Ex.10, who produced the relevant documents at trial. Thereafter, the prosecution side was closed vide statement at Ex.11.
7. The statement of accused was recorded under section 342; Cr.P.C. at Ex.12, wherein he has totally denied the allegations levelled by the prosecution and pleaded his false implication in the present case. The accused however, examined himself as required under section 340(2), Cr.P.C. on oath in disproof of the prosecution allegations as well as examined his mother namely Mst. Fiza (D.W-01) in his defence.
8. Learned trial Court after hearing the learned counsel for the parties and evaluation of the evidence produced at trial, vide judgment dated 23.09.2020, convicted and sentenced the appellant as stated above, hence this appeal is preferred by the appellant.
9. The evidence produced before the trial Court finds an elaborate mention in the Judgment dated 23.09.2020 passed by the learned trial Court, therefore, the same may not be reproduced here so as to avoid unnecessary repetition.
10. Learned counsel for the appellant contended that there are material contradictions in the evidence of the prosecution witnesses and evidence of police officials was not trustworthy; that in the mashirnama of arrest and recovery, number of lever of the hand grenade has not been mentioned; that in the memo of arrest and recovery, the recovered Kalashnikov has been mentioned as without number but in the FSL Report the same has been described as rubbed number. Therefore, it is argued that the prosecution has failed to prove its' case beyond reasonable doubt, hence prayed for acquittal of the appellant.
11. Conversely, learned DPG has argued that police officials/ complainant as well as mashirs, Head Muharir as well as Investigating Officer have supported the prosecution case and case is proved against the accused beyond the shadow of doubt. He has also argued that defence counsel has not been able to create any dent/defect in the prosecution case and the offence has been proved against the appellant who was arrested from the spot and from whose possession hand grenade as well as Kalashnikov were recovered in presence of mashirs, reports of experts were positive.
Learned DPG prayed for dismissal of appeals.
12. We have carefully heard learned counsel for the parties and have gone through evidence as well as material available on record and have come to the conclusion that prosecution has failed to prove its case against the appellant for the reasons that admittedly, it was the case of spy information, but SIP Rana Nisar Ahmed had failed to associate independent persons of the locality to act as mashir, which was admittedly thickly populated area. It is claimed by the prosecution that one hand grenade gray color was allegedly recovered from the possession of the appellant, but no description/number of the hand grenade was mentioned in mashirnama of arrest and recovery; while contradicting this fact, Inspector Muhammad Aamir of BDU (PW-02) in his evidence at Ex.7/G produced inspection report of hand grenade, which shows that on the lever there was lot No.24-70 y3PFM 386. It is the case of the prosecution that a Kalashnikov without number was also allegedly recovered from the possession of the appellant, however FSL report produced at Ex. 10/F depicts the weapon with rubbed number. The I.O. had also failed to interrogate the appellant that with what intention, appellant was carrying such explosive substance. Defense plea has been raised by the appellant that he was picked up by the police officials while he was coming from Ankle Sarya Hospital along with his cousin. Investigating Officer failed to examine such plea during investigation even trial Court ignored defense evidence without assigning cogent reasons. It appears to be very illogical that though appellant being allegedly armed with deadly weapons like Kalashnikov and hand grenade but he did not resist and calmly surrendered himself before the police. Discrepancies pointed out by the learned Counsel have created a reasonable doubt in the case of the prosecution.
13. In presence of lacunas/defects in the prosecution case as mentioned above, we are of the considered view that the conclusion drawn and reasons advanced by learned trial Court do not show fair evaluation of evidence, which is not in accordance with the settled principles in criminal cases.
14. For the above stated reasons, we have no hesitation to hold that there are several infirmities in the prosecution case as highlighted above, which have created doubt. In the case of Tariq Pervez v. The State (1995 SCMR 1345), the Honourable Supreme Court has observed as follows: "It is settled law that it is not necessary that there should many circumstances creating doubts, If there is a single 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 a matter of grace and concession but as a matter of right."
15. For the above stated reasons, we have come to the conclusion that prosecution has miserably failed to bring home the guilt of appellant, resultantly, the captioned Appeals are allowed.
Consequently, judgment dated 23.09.2020 passed by learned Anti-Terrorism Court No. IV Karachi Division in Special Case No. 644/2019 (FIR No.279/2019 for offence under Section 5 of the Explosive Substances Act, 1908 read with section 7, Anti-Terrorism Act, 1997) and Special Case No. 644- A/2019 (FIR No.280/2019 for offence under section 23(1)(a) of Sindh Arms Act, 2013) stand set aside.
Appellant Asadullah son of Abdul Raheem alias Raheem Kana is acquitted from the aforesaid charge and the be released forthwith, if not required in other case.