Ch. Abdul Aziz, J.--Irfan Ali (appellant) involved in case FIR No. 36/2019 dated 25.06.2019 registered under Sections 4 & 5 of the Explosive Substan ces Act, 1908 (hereinafter referred to as "ESA, 1908") and Section 7 of Anti-T errorism Act, 1997 at Police Station CTD, Faisalabad, was tried by learne d Special Judge Anti-T errorism Court, Sargodha, who vide judgment dated 03.06.2021 proceeded to convict him under Section 5 of ESA, 1908 and sentenced him to suffer rigorous imprisonment for 5-years along with forfeiture of whole of his property in terms of Section 5-A of the Act ibid in favour of the State. Benefit of Section 382-B, Cr.P.C. was also extended to the appellant.
Being aggrieved from the afore-said conviction and sentence, the appellant filed the instant appeal.
2. Briefly stated the case of the prosecution as disclosed by Abdul Rehman 872/C P (PW.5) in FIR (Exh.P A/1) is to the effect that on 24.06.2019 at about 8:40 p.m., he along with Muhammad Ramzan AR Muhammad Shoaib 13/CP and Hamad Qadeer CP was present at CTD Office Mianwali when the informer gave the information that a suspicious person on having black colour bag suspected to contain weapons etc., was present near Bairuli Railway Phatak; that on this information the CTD officials reached the said place at 8:55 p.m. while boarding official vehicle being driven by Tasawar Saeed 352/C; that upon the pointation of the informer , Irfan Ali (appellant) was apprehended and from the black colour bag in his possession, light brown colour explosive material weighing 1760 grams, three detonators and one safety fuse measuring 6-feet were recovered, out of the recovered explosive substance, 3 grams were separated for analysis; that he also summoned Bomb Disposal Commander at the spot.
Thereafter , he drafted complaint (Exh.P A) and sent it to the Police Station through Muhammad Shoaib 13/CP for the registration of formal FIR.
3. The matter after investigation was placed before the trial Court where prosecution in order to prove its case against the appellant produced 6-PWs, namely , Muhammad Saleem Aslam 495/CP (PW.1) who after the receipt of complaint (Exh.P A) chalked out the formal FIR (xh.P A/1), Khaliq Dad Khan Bomb Disposal Commander (PW.2) who after examining the detonators and safety fuse prepared report (Exh.PB), Noor Zaman ASI (PW.3) who was working as Moharrar/Station Clerk at the relevant time, Hamad Qadeer 791/CP (PW.4) & Abdul Rehman 872/CP (PW.5) who are witnesses of recovery and Zeeshan Haider . Inspector (PW.6) who is Investigating Officer of the case. After the conclusion of prosecution evidence, the learned trial Court also examined the appellant under Section 342, Cr.P.C. during which he was asked the questions arising out of the prosecution evidence but he denied almost all such questions while pleading his innocence and false involvement in the case. At that time the appellant did not make statement under Section 340 (2), Cr.P.C. The appellant did not appear under Section 340 (2), Cr.P.C., however produced certain documents i.e. Exh.DB/1-10 & Mark-A in defence. On the conclusion of trial, the appellant was convicted and sentenced as afore-sated, hence the instant appeal.
6. Arguments heard. Record perused.
7. A wade through the record unfolds that on 26.04.2019 at about 8:40 p.m. complainant Abdul Rehman 872/CP (PW.5) along with some other personnel of CTD was present at CTD Office Mianwali. Meanwhile Abdul Rehman 872/CP received spy information about presence of Irfan Ali (appellant) in suspicious condition near Bairuli Railway Phatak. After the receipt of such information, the officials of CTD reached the given location and apprehended Irfan Ali (appellant) from whose possession light brown colour explosive material weighing 1760 grams (P.2), three detonators (P.4/1-3), one safety fuse measuring 6-feet (P.5) were recovered. The grenades were examined immediately after this occurrence by Khaliq Dad Khan (PW.2), a personnel from Bomb Disposal Squad who defused the same and as per report (Exh.PB) the grenades were filled with explosive.
8. The instant appeal against conviction is mainly moved on the ground that even if the prosecution evidence is admitted to be correct, the presumption of guilt was dislodged from strong defence version, advanced during trial on behalf of the appellant. We consider it appropriate to restrict ourselves only to the extent of defence version so put forth before learned Judge ATC. In this regard, we have minutely examined defence version, the detail of which is mentioned in Question No. 5 of the appellant's statement recorded under Section 342, Cr.P.C. According to the defence version Irfan Ali (appellant) initially was confined in Central Jail, Rawalpindi for a period of 30-days and subsequent thereto this period was extended through order dated 02.04.2019 passed by the Additional Chief Secretary Home Department of Government of Punjab with the instructions to CTD to keep surveillance upon him; later even after the expiry of detention period, the appellant was not released and consequently Malik Muhammad Imran, brother of the appellant filed W.P.No. 1876 of 2019 before Lahore High Court, Rawalpindi Bench Rawalpindi. According to the stance of appellant during pendency of afore-mention ed writ petition, Superintendent Central Jail Rawalpindi and Deputy Commissioner Rawalpindi appeared before the Lahore High Court Rawalpindi Bench Rawalpindi on 27.06.2019 and produced copy of FIR No. 36 dated 25.06.2019 (Exh.P A/1). We have minutely examined the contents of W.P.No. 1876 of 2019 according to which the date of abduction of the appellant is 18.03.2019 and such misdeed is attributed to some law enforcing agencies. It needs no mention that W.P.No. 1876 of 2019 (Exh.DB) was filed on 11.06.2019 i.e. 14-days prior, to the registration of instant case. From the aforementioned documents it can well be extracted that the appellant remained under confinement in Central Jail, Rawalpindi for sixty days under Section 3 (1) of the Maintenance of Public Order , 1960 but after the expiry of such detention period he was not released which prompted the appellant to file the afore-said writ petition on 11.06.2019, thus there was no occasion for the recovery of explosive material etc from the possession of the appellant on 25.06.2019. It is settled law that if, after an examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it will react on the whole prosecution case and under these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace but as of right. Such rule of appraisal of evidence is based on the case title Woolmington v.
Director of Public Prosecutions (1935 Appeal Cases 462).
9. For the forgoing reasons, since the appellant has dislodged the prosecution case through its strong defence, hence this Court is under no compulsion to uphold conviction awarded to the appellant.
Resultantly , while allowing Criminal Appeal No. 38754 of 2019, conviction and sentence of Irfan Ali (appellant) is set aside and he is acquitted of the charge. He is under custody; be released forthwith if not required to be