ABDUL MOBEEN LAKHO, J.---Muhammad Zakir and Adnan Waqar Siddiqui, the appellants were tried by the learned Judge Anti-T errorism Court No. IV, Karachi Division in Special Cases Nos. 452 and 452-A of 2019 (arising out of FIR No.106/2019 under Section 4/5 of Explosive Substance Act read with Section 7 Anti-T errorism Act, 1997). Both the appellants were also tried in Special Cases Nos.452-B and 452-C of 2019 (arising out of FIR Nos.107 and 108 of 2019 under Section 23(1)(a) of Sindh Arms Act, 2013), all the FIRs were lodged at P.S PIB Colony Karachi. By judgment dated 21.03.2020, the learned trial Court convicted the appellants under Section 5 of the Explosive Substances Act, 1908 and sentenced them to suffer R.I for three years each. Appellants were also convicted under Section 23(1)(a) of Sindh Arms Act, 2013 and sentenced to suffer R.I for three years each and to pay fine of Rs.5000/- each and in case of default, they were ordered to suffer S.I for one month each. All the sentences were directed to run concurrently . Appellants were also extended benefit of section 382-B, Cr .P.C.
2. Brief facts of the prosecution case as alleged by the complainant in his evidence are that on 01.07.2019 he was posted at P.S PIB colony Karachi and at 2345 hours, he left P.S along with his subordinate staff for patrolling in the area. The complainant received spy information regarding presence of two persons on the stairs of Tarbooz ground in suspicious condition. Police reached at the spot and arrested two persons, who disclosed their names as Muhammad Zakir and Adnan Waqar. Complainant conducted personal search of accused Muhammad Zakir and recovered one black color bag wherein one Kalashrtikov loaded with magazine containing 15 live bullets. Upon further search complainant also recovered one hand grenade having plastic body of green color from the side pocket of his shirt, mobile and some cash amount. Complainant also conducted personal search of accused Adnan Waqar and recovered one 30 bore pistol from the fold of his shalwar which without number containing five live bullets. Complainant also recovered one hand grenade from the pocket of his shirt as well as mobile phone and some cash. Thereafter , complainant called BDU Team, who arrived at the place of incident and defused the hand grenades. The complainant sealed the weapons on spot and prepared memo of arrest and recovery in presence of mashirs. Accused, arms and ammunition were brought at police station where BDU sealed the hand grenades and thereafter , the complainant lodged the FIRs on behalf of state as referred hereinabove.
3. On 01.07.2019, investigation was entrusted to Inspector Bashir Ahmed who received copies of three FIRs, memo of arrest and recovery and custody of the accused along with three parcels in sealed condition. On the same day at 1610 hours, he along with compla inant mashirs Ali Raza and HC Gul Muhammad visited place of incident and prepared mashirnama of site inspection of incident and took photographs. On 02.07.2019, he sent weapons to the FSL for examination and received positive report. LO also obtained CRO of both the accused and found that accused Adrian Waqar Siddiqui was previously involved in two criminal cases. After completion of investigation, challan was submitted against accused before the competent Court of law .
4. Upon indictment, the accused pleaded not guilty and claimed their trial.
5. At trial prosecution examined P.W-01 SI Abid Farooq, BDU West Zone at Ex.5, P.W-02 SI Syed Hasnain Raza at Ex.6, P.W-03 HC Dur Muhammad at Ex.7 and P.W-04 Inspector Bashir Ahmed I.O. at Ex.09, who produced the relevant documents. Thereafter , learned APG closed the prosecution side.
5. Statements of accused were recorded under Section 342, Cr.P.C. at Exs.1 1 and 12, in which they denied the prosecution allegations and claimed their innocence. Accused Muhammad Zakir neither examined himself on oath under Section 340(2), Cr.P.C., in disproof of the prosecution allegations nor produced any witness in his defence, but produced application made by his mother to SHO concerned regarding missing of her son which was received at P.S on 16.01.2019, copy of C.P.No.D-633/2019 along orders passed by this Court etc. Accused Adnan Waqar Siddiqui though did not examine him on oath under Section 340(2), Cr.P.C., in disproof of the prosecution allegations, he nevertheless, produced D.Ws Mst. Zareena Begum, Mst. Sumera and Sheezan Ahmed in his defence annexed application of his missing which was received at concerned P .S on 25.06.2019.
7. Learned trial Court after hearing the learned counsel for the parties and assessment of the evidence produced at trial, convicted and sentenced the appellants as stated above, hence this appeal is preferred by the appellants.
8. Learned counsel for the appellants argued that there are material contradictions in the evidence of the prosecution witnesses and prosecution story was highly doubtful. They further submitted that there are discrepancies in the memo of recovery and arrest and in the FSL report as well as in the FIRs; that there are doubt regarding timing of the arrest of the appe llants from the place of incident and there is no evidence regarding safe custody of the arms and ammunition at police station. They further submitted that the evidence of complainant and mashir is conflicting and inspires no confidence, making the alleged recoveries doubtful. Counsel for appellant Adnan Waqar Siddiqui has emphasized that appellant was picked by the police on 23.06.2019 and such application was made by her mother to concerned SHO as well as filed petition regarding missing of appellant Adnan before this Court. They finally argued that the arms and ammunition have been foisted upon the appellants and the prosecution has failed to prove its case against the appellants, hence they may be acquitted.
9. On the other hand, learned D.P.G contended that all the prosecution witnesses have fully supported the prosecution "case; contradictions as highlighted by the defense counsel are minors in nature. He opposed the appeal.
10. We have heard the learned counsel for the appellants and learned Deputy Prosecutor General and with their assistance perused the record and evidence recorded during the trial carefully .
11. After perusal of the evidence of the prosecution witnesses and material on record meticulously , we have found material contradictions and discrepancies in the evidence of the prosecution witnesses.
12. Complainant Inspector Syed Hassain Raza (P.W-02) has deposed that at about 4:00 a.m., when they reached at Gorhabad Road, Old Sabzi Mandi, he received spy information that two persons were sitting on the stairs of Tarbooz ground in suspicious condition, police went there and arrested the accused and allegedly recovered arms and ammunition. It looks unrealistic that complainant received information at 4:00 a.m. within a minute, the police reached at the place of incident, arrested accused, effected recovery of the arms and explosive substance, called BDU Team, thereafter , at the same time prepared the memo arrest and recovery , however , perusal of the memo. of arrest and recovery shows that complainant prepared the mashirnama of arrest and recovery at 4:00 a.m. after defusing the hand grenades and sealed both the arms and hand grenades. SI Abid Farooq of BDU (P.W-01), totally belied the same while deposing that on 01.07.2019 at 4:05 a.m., operator informed him to reach at old Sabzi Mandi, Tarbooz ground for defusing the explosive material. He reached on the spot at 4:25 a.m. and at 4:30 a.m., he defused the alleged recovered hand grenades whereas, the hand grenades according to SI Abid Farooq sealed at police station. It is beyond comprehension that if SI Abid Farooq of BDU depos ed that he came at the place of incident at 4:25 a.m. and defused the alleged recovered hand grenades at 4:30 a.m. then how it is possible that all the arms and hand grenades were sealed and thereafter , BDU team reached at the spot. We have also noted there is overwriting in the description of the hand grenade allegedly recovered from the possession of appellant Muhammad Zakir . We have further noted that I.O. in his evidence has deposed that he received three sealed parcels and out of which he sent only two sealed parcels containing alleged recovered pistol and Kalashnikov to the FSL for examination and now there remained one sealed parcel, however , surprisingly , two sealed LED savor boxes in sealed condition containing hand grenades were de-sealed in Court. It is shocking that one parcel as per evidence of the I.O., containing alleged recovered hand grenades was handed over to him, then how two sealed parcels containing alleged recovered hand grenades were produced at trial. We have further noted that from the possession of appellant Muhammad Zakir , police allegedly recovered one Kalashnikov without number with 15 live bullets and one 30 bore pistol with five rounds, but, in the FSL report it is reported that one 7.62 x 39 mm rifle rubbed number was sent for examination. However , when the said weapon was shown to the (P.W-03) mashir HC Dur Muhammad, it was noted that digits "020406081012" were found engraved whereas, in the mashirnama of arrest and recovery there is no mention of any digits. As regards to the alleged recovery of 30 bore pistol from the possession of appellant Adnan Waqar Siddiqui is concerned, in the memo of arrest and recovery , the said pistol was shown as without number , whereas, perusal of FSL shows that rubbed number was sent for examination. Even in the evidence, the Complainant and P.W-03 HC Dur Muhammad mashir of recovery and arrest have admitted that sketch of pistol produced in Court did not match with the sketch of the pistol. Apart from above material contradictions and discrepancies, safe custody of the recovered weapons at police station and their transmission to the FSL have never been proved by the prosecution at trial, thus such recoveries cannot be safely relied upon. The Honourable Supreme Court in the case reported as Kamal Din alias Kamala v. The State (2018 SCMR 577) has held as under:-
4. As regards the alleged recovery of a Kalashnikov from the appellant's custody during the investigation and its subsequent matching with some crime-empties secured from the place of occur rence suffice it to observe that Muhammad Athar Farooq DSP/SDPO (PW18), the Investigating Officer, had divulg ed before the trial court that the recoveries relied upon in this case had been effected by Ayub, Inspector in an earlier case and, thus, the said recoveries had no relevance to the criminal case in hand. Apart from that safe custody of the recovered weapon and its safe transmission to the Forensic Science Laboratory had never been proved by the prosecution before the trial court through production of any witness concerned with such custody and transmission.
13. We have heard the learned Counsel for the parties. As at present no sufficient evidence is available on record to conclude that the accused/appellant Adnan Waqar is habitual offender , coupled with the fact that although FIRs, referred to by the learned Deputy P.O., have been registered against him but it, itself is not sufficient to prove the appellant to be so, unless it is proved/established that he has been convicted in the said FIRs and the said conviction has been finally maintained by the superior Courts.
14. It is necessary that in order to ensure safe administration of criminal justice, we must evaluate and assess the evidence carefully and when we juxtapose evidence of prosecution witnesses with the position taken by appellants along with other material annexed with their statements recorded under Section 342, Cr.P.C., we find that prosecution has not been able to prove its case beyond shadow of reasonable doubt and even trial court has failed to assign cogent reasons for discarding the defense taken by the appellants.
15. For what has been discussed above a conclusion is irresistible and inescapable that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. It is not necessary that there should be a number of circumstances creating doubt, even a single circumstance that creates reasonable doubt in the mind of a man of ordinary prudence about guilt of the accused benefit of that must go to him. Similar is the position of the case in hand. We have found more than one such instances that have shattered the case of the prosecution as highlighted above and so benefit thereof must go the appellants. Reliance is placed on Riaz Masih alias Mithu v.
The State ( 1995 SCMR 1730 ).
16. Resultantly , Special Criminal Anti-T errorism Jail Appeal No.91 of 2020 filed by Muhammad Zakir and Adnan Waqar Ahmed Siddiqui appellants is accepted. Conviction and sentences recorded by the trial-Court vide judgment dated 21.03.2020 in Special Cases Nos. 452 and 452-A of 2019 (arising out of FIR No.106/2019 under Section 4/5 of Explosive Substance Act read with Section 7 Anti-T errorism Act, 1997) and in Special Cases Nos.452-B and 452- C of 2019 (arising out of FIRs Nos. 107 and 108 of 2019 under Section 23(1)(a) of Sindh Arms Act, 2013), all lodged at P.S FIB Colony Karachi, are set aside. Muhammad Zakir son of Muhammad Akhtar and Adnan Waqar Ahmed Siddiqui son of Jamal Ahmed Siddiqui, appellants are acquitted from the charges. Appellants shall be released forthwith, if not required in any other case. These are the reasons for the short order announced on 22.01.2021.