ABDULLAH BALOCH, J.---This judgement disposes of Criminal (ATA) Appeal No.52 of 2020 filed by the appellant Soorat Khan son of Rooz Muhammad, against the judgement dated 15th February 2020 (hereinafter referred as, "the impugned judgement") passed by learned Special Judge Anti Terrorism Court-II Quetta (hereinafter referred as, "the trial Court"), whereby the appellant was convicted under section 6(2)(a) of Anti Terrorism Act, 1997 ("ATA, 1997") and sentenced under section 7(a) of ATA, 1997 to suffer R.I. for life with fine of Rs.400,000/-, which in case of recovery was directed to be paid to the legal heirs of deceased Uzair son of Ali Muhammad and Zakariya son of Haji Ghulam Sarwar separately @ Rs.200,000/- each and in default thereof to further suffer two (02) years S.I. The appellant was also convicted under Sectio n 6(2)-(b) of ATA, 1997 and sentenced under section 7(c) of ATA, 1997 to suffer ten years R.I. and to pay fine of Rs.500,000/- and in default thereof to further suffer two years R.I. under section 6(2)(c) of ATA, 1997 and sentenced under section 7(d) of ATA, 1997 to suffer ten years and to pay fine of Rs.500,000/- and in default thereof to further suffer one year S.I.; under section 3 of Explosive Substances Act, 1908, the appellant was sentenced for life imprisonment and to pay Rs.2,00,000/- on in default thereof to further suffer one year S.I. The benefit of section 382-B, Cr .P.C. has also been extended in favour of appellant.
2. Facts of the case are that on 11th November , 2014, the complainant Shauka t Jadoon, SI/SHO, lodged FIR No.148/2014 at Police Station Industrial Area Quetta. under sections 302, 324, 427, P.P.C. and sections 3, 4, 5 of Explosive Substances Act, 1908 read with section 07 of ATA, 1997, with the averments that on the day of occurrence he along with other police officials were patrolling the area, when at about 08.50 a.m. they heard the voice of a blast, thus they reached at the spot i.e. Zarghoon Road near Al-Falah. Decoration, opposite Madina Market and found that when the convoy of the Judge Anti Terrorism Court-I was passing an explosion had occurred, whereby one child was dead, while 37 persons including 02 police officials got injured and the vehicle of the Hon'ble Judge was damaged, but miraculously the Hon'ble Judge Nazeer Ahmed Langove remained safe.
Hence, the dead body and the injured were shifted to hospital and the Bomb Disposal Team reached at the spot and after inspection the Incharge Bomb Disposal Team Abdul Razzaq apprised that the explosion occurred due to installation of about 40/50 Kgs explosive substance in an Alto Car and was detonated through remote control. After registration of FIR, another injured namely Zakariya was shifted to Agha Khan Hospital Karachi, where during medical treatment he succumbed to his injuries.
3. During investigation the appellant was arrested, who was subjected to investigation and on completion thereof, the appellant was remanded to judicial custody . Charge was indicated to the appellant by the trial Court, who refuted the same, thus the prosecution in order to establish the charge has produced the evidence of thirty (30) witnesses, whereafter the appellant was examined under section 342, Cr.P.C. However , he neither recorded his statement on oath under section 340(2), Cr.P.C. nor produced any witness in his defence. On conclusion of trial and after hearing arguments, the appellant was convicted and sentenced as mentioned above in para No.1 whereafter instant appeal has been filed.
4. The learned counsel for appellant states that the prosecution has absolutely failed to establish the charge through consistent and confidence inspiring evidence; that the entire case of ' prosecution rests upon circumstantial evidence, which being week type of evidence, is not inter-linking the one with the other, thus no implicated reliance could be placed upon the same; that during investigation the appellant was badly tortured, which fact was also brought by the appellant before the learned Judicial Magistrate at the time of recording his confessional statement and even the appellant has never recorded his extra judicial confession; that both the statements i.e. extra judicial confessional and the confessional statement are contradictory to each other , thus no worth credence to award and maintain conviction of the appellant; that the appellant has been involved in this case on the basis of presumptions; that he was the owner and last possesso r of vehicle in question, which was used in the crime, but during trial the prosecution has badly failed to establish his possession or control over the said vehicle; that the prosecution evidence is tainted with doubts, thus the appellant deserves to be acquitted of the charge.
5. To the contrary , the learned Additional Prosecutor General while supporting the impugned judgement of conviction passed by the trial Court has fully refuted the arguments so advanced by the learned counsel for appellant and contended that the prosecution has established its case on the basis of strong and concrete evidence; that the prosecution has establ ished the ownership of the appellant in respect of vehicle in question and even during investigation not only the appellant recorded his extra judicial confession, but also recorded his confessional statement before the Magistrate, while the appellant during trial has failed to give any dent or damage to such evidence, thus rightly the learned trial Court awarded conviction and sentence to the appellant through impugned judgment, which otherwise is not open for interference by this Court.
6. Heard the learned counsel and perused the available record. Prior to dilating upon the circumstantial evidence, it would be appropriate to first discuss the medical evidence produced by the prosecution through PW-24 Dr. Ali.
Mardan Mengal, Police Surgeon and PW-26 Dr. Noor Baloch Police Surgeon, who after examining the injured issued MLCs as Ex.P/24-A to Ex.P/24-C and Ex.P/26-A to Ex.P/26-AK. Perusal of said MLCs transpires that, all the injured received splinter wounds on different parts of their bodies caused due to bomb blast. The injured being the eye-witness and the victims of the occurrence appeared in the Court as PW-3, PW-4, PW-7. PW-8 to PW-12, PW- 14 to 16. PW-19 to PW-27 and PW-29. All the injured witnesses were either the business community/ shopkeepers of the concerned area or the passersby , who directly witnessed the crime and being injured witnesses their testimony was not challenged by the defence. Even otherwise, the defence has not disputed the occurrence, but pleaded his false implication. It has been observed that though the minor deceased Uzair was died at the spot and after examination, Death Certificate was issued confirming his unnatural death and likewise another . injured Zakariya Khan was shifted to Agha Khan Hospital Karachi, where he remained under treatment for a week and thereafter he succumbed to his injuries and accordingly the concerned hospital issued his Death Certificate, but the death certificates of the both the deceased were not exhibited during trial. The I.O. prepared the inquest report of deceased Uzair , but the ATA Prosecutor has failed to exhibit the same in the trial Court, while the no inquest report at all of other deceased namely Zakariya was prepared. Though the incident and the death of both the deceased were not disputed by the defence, but however , non-exhibiting of material piece of evidence has made defective the case of prosecution and it appears that the Prosecutor appearing in the trial Court on behalf of State has acted carelessly , intentionally or unintentionally , but damaged the case of prosecution.
7. Now adverting to circumstantial evidence, suffice to state here that besides the medical evidence, the whole prosecution story revolves around the ownership of vehicle, allegedly remained in the possession of the appellant as owner till the time of blast; secondly he recorded his confessional and extra judicial confessional statement.
8. Adverting to ownership of the vehicle in question, suffice to observe here that soon after the blast, the Bomb Disposal Team headed by Abdul Razzaq, ASI, visited the place of occurrence and opined that the explosive material of 40/50 Kgs was installed in a Alto Car, and the same was exploded through remote Control. It has been observed that the B sole clue which leads the police to arrest and investigate the appellant was the ownership of Alto Car bearing Regis-tration No.P-4958, Engine No.KB101416, Chassis No. SB308PK633155 ("vehicle in question") and according to the prosecution the appellant was the purchaser and last possessor of the same. The prosecution in order to establish the last possession and ownership of the appellant in respect of vehicle in question has produced the evidence of PW-5 Abdul Razzaq Pirkani, PW-13 Tanveer Ahmed, ASI, recovery witness, PW-15 Abdul Khaliq, PW -21 Izatullah and PW -28 Muhammad Fazal.
9. PW-5 in his examination in chief has mentioned that on 23rd March 2015 he was present in his godown at Mian Ghundi, when two persons arrived there in a white colour pick-up and enquired about the Alto vehicle, to which he (PW-5) apprised them that the said vehicle is owned by PW-28, thus they went to meet with PW-28 and after an hour he (PW-5) inquired from PW-28, who disclosed that he had sold out the vehic le. The statement of this witness transpires that on the one hand he has wrongly mentioned the date of transaction as 23rd March 2015, while much prior from the said date, the vehicle in question was used in the crime on 11th November 2014 and fully damaged into pieces, thus no question for approaching to PW-5 by the culprits does arise at all. Secondly , as per own showing of the PW-5 that he enquired from PW-28 that whether he sold the vehicl e to which replied in affirmative.
Be that as it may, PW-28 replied in affirmative to PW-5 that he sold the vehicle, but his reply is silent to the effect that either the said vehicle was purchased by the said two persons, who were sent by PW-5 towards PW-28 or the PW-28 has sold out the same to someone else. Minute perusal of statement of PW-5 further divulges the fact he in his statement has simply mentioned "Alto vehicle" and no further details were brought on record by him. Without mentioning the details of Alto vehicle it also cannot be presumed that the said Alto vehicle was the same, which was used in the crime.
10. The statement of PW-28 Muhamma d Fazal is also very much important for the case of prosecution, who brought on record that in the year 2015 two persons including the appellant approached him for the purchase of vehicle No.4958, which was sold out to them at sale consideration amount of Rs.120,000/. The statement of this witness shows that he has absolutely failed to mention the exact date, time or month, when such transaction had taken place and even he mentioned wrongly the year of transaction as 2015, while the incident had taken place on 11th November 2014. The statement of this witness is also silent to the effect that from whom he had purchased the said vehicle and for what time period such vehicle had was remained in his possession and subsequently was sold out.
PW-28 has also failed to disclose the further details of vehicle including the chass is and engine numbers and also failed to bring on record that whose name was mentioned in the registration documents and transfer letter . PW-28 has also failed to produce any Iqrar Nama or agreement establishing that the vehicle in question was earlier purchased by him and subsequently he sold out the same to appellant. This witness in his cross-examination has admitted that he could not produce any written evidence in respect of ownership of vehicle in question. Since, no exact details of the vehicle in question have been brought on record by this witness, thus again on the basis of presumption it cannot be assumed or presumed that either the vehicle had remained in his ownership and subsequently he had sold out the same to the appellant, when otherwise no agreement/Iqrar Nama of this witness is available on record executed by him either with the seller or with the purchaser .
11. In continuation of above para, it is further observed that though the Court statement of this witness is altogether silent with regard to seller , from whom he had purchased the vehicle, but however , he in his statement under section 161, Cr.P.C. had mentioned that he had purchased the same from PW-21 Izzatullah, thus we have carefully compared the statement of both the PW-21 and PW-28 and observed glaring contradictions in their statements.
PW-21 in specific terms stated that in the year 2014 he purchased the vehicle from one Niaz Muhammad and subsequently sold out the same to one Zafar Baloch and the said Zafar Baloch sold out the same to PW-28, while the Court statement and statement under section 161, Cr.P.C. of PW-28 are fully silent with regard to the name of Zafar Baloch. Both the Niaz Muhammad Pirkani and Zafar Baloch have not been produced in the Court.
12. PW-12 Tanveer Iqbal, ASI; produced receipt dated 28th February 2013 issued by Al-Saadat Property Dealer Art.P/4, which shows that a land sale/ purchase transaction was taken place between Abdul Wali and Hayat Khan, wherein (P4958) being the registration number of vehicle was also mentioned. However , the prosecution has failed to produce the executants of said sale transaction/agreement/receipt, thus the said document has not been proved and cannot be taken into consideration as evidence. PW-13 produced Iqrar Nama for sale/purchase of vehicle in question (Art.P/5) taken place between the first owner of vehicle namely Agha Nazim-ud-Din and Mumtaz Ali Pathan, but in order to substantiate the contents of said Iqrar Nama both the executants namely Agha Nazim-ud- Din and Mumtaz Ali Pathan have not been produced in the Court, thus cannot be taken into consideration. PW-15 Abdul Khaliq has brought on record that in the year 2013 he purchased the said vehicle from one Abdul Wali and after some times he sold out the same to one Abdul Salam Mengal, but the purported purchaser namely Abdul Salam was also not produced in the Court to confirm that he purchased the vehicle from PW-15. According to the the report dated 25th December 2014 issued by Citizens Police Liaison Committee Central Reporting Cell Ex.P/30- E) the vehicle in question was registered in the name of Agha Nazamuddin Khan, while Iqrar Nama (Art .P/5) P/5) transpires that Agha Nazamuddin Khan sold out the same to Mumtaz Pathan, but again neither the seller nor the purchaser have been produced in the Court to confirm the prosecution plea and also to confirm the contents of Sale agreement executed in between them.
13. It has been observed that the entire case of prosecution against the appellant was founded on the basis of ownership of vehicle in question, thus the prosecution has to prove that the appellant was the owner and the last possessor of vehicle in question, but the above narrated facts enumerated by the prosecution witnesses is enough to hold that the prosecution has failed to prove the ownership of the appellant in respect of vehicle in question, which was used in the crime. The prose cution has failed to link the one purcha ser or seller with the other , as. number of persons against whom it was asserted that they were also remained the previous owners of the vehicle were neither associated in the investiga tion nor produced during trial. Even the executants of sale/purchase agreements Art.P/4 and receipt Art.P/5 have not been produced, thus such documents cannot be taken into consideration. Besides, no any sale/ purchase agreement is available on record in between the appellant and PW- 28, who is claiming as penultimate owner of the vehicle. The appellant can only be burdened with the liability of the offence when his possession and control over the vehicle is established by the prosecution. Thus we have no hesitation to hold that the prosecution has failed to prove the ownership of the appellant in respect of vehicle in question, which was used in the crime, therefore, it would not be safe to rely on mere words of the prosecution that the alleged vehicle was owned or possessed by the appellant. The Hon'ble Sindh High Court in the case of Shawaz Khan v. Stale 2009 PCr.LJ 480 (Karachi), has held that, "The appellant can only be saddled with the liability of the offence when his possession and control over the vehicle is established by the prosecution. To our view the prosecution has failed to establish the appellant's possession and control over the vehicle." Similar view has also been taken by the Lahore High Court in the case of Muhammad Asif alias Rana Saqib and another v.
The State and another , reported in 2019 PCr .LJ Note 156 p.180 wherein it was held as under: "21 Prosecution also relied on. the recovery of motor cycle (P.19.) from Naveed Ullah, appellant secured by the I.O. vide Memo Ex. PBB. Suffice it to say that PWs. 19 and 20 during investigation or even at trial, did not state about registration number or make/model of motorcycle used by the culprits at the relevant time, so recovery of motor cycle does not connect them with the commission of crime. Even otherwise the Investigator did not investigate about ownership of the said motor-cycle to connect the same with the appellants. Thus the evidence of recoveries appears to be fake and manoeuvred and created later on to strengthen the prosecution case. In view of dictum laid down in case Mursal Kazmi v. The State (2009 SCMR 1410 ) that one tainted piece of evidence cannot corroborate the other tainted piece of evidence, we discard the same from consideration."
14. As mentioned above, the prosecution has failed to associate in the investigation number of persons, against whom the prosecution has asserted that prior to purchase of vehicle in question by the appellant, the same remained in possession of the said persons as owners for certain time period. In order to intact the link of one seller/purchaser with the other , the prosecution was required to associate in the investigation and to produce all the said persons, but this has not been done, when otherwise the entire case of the prosecution revolves around the testimony of said witnesses. Legally , the prosecution cannot be bound down to produce each and every witness, but if the prosecution fails to produce any witness who is the central figure and the entire story revolves around him, then the prosecution story would become doubtful and the prosecution story cannot be believed in toto. There is no explanation on the part of prosecutio n that as to why the evidence of these witnesses was withheld, therefore, a presumption under Illustration (g) of Article 129 of Qanun-e-Shahadat Order , 1984 can fairly be drawn that had the said witnesses been examined in the Court, their evidence would have been un-favourable to the prosecution.
The Hon'ble Supreme Court in the case of Khalid alias Khalidi and 2 others v. The State, reported in 2012 SCMR 327 , has held that: "The prosecution has not for the reasons best known to it, produced Mst. Jannat Bibi, an injured witness, from which an inference could be drawn against the prosecution that if she is produced she would have not supported the prosecution version. We, therefore, find that the ocular account is not of such a character which could be relied upon in order to convict a person on a capital charge when the same is not corroborated by any other independent evidence as the presence of both the eye-witnesses at the place and time of occurrence is not established as their statements have been disbelieved by learned appellate court regarding Sultan Mehmood acquitted accused."
15. Diverting to the confessional stateme nt of appellant recorded under section 164, Cr.P.C. by learned Judicial Magistrate-XII Quetta on 6th April 2015 (Ex.P/6-G to Ex.P/6-K). it would he essential to state here that according to settled principle of law, the confession must not only be voluntary , but it must also be true, therefore, in order to ascertain its truthfulness, it is necessary to examine and compare the confession with the rest of the prosecution evidence to exclude any possibility or probability of any doubt qua its true character . Until and G unless, the confessional statement does not appear to have been recorded voluntarily , without duress, coercion and inducement, it can neither be taken into consideration nor can be made basis for awarding conviction to an accused. The questionnaire replied by the appellant reveals that he was tortured by the police, therefore, no question at all remains for recording of such statement voluntarily and without any pressure. It has also been observed that the extra judicial confession of appellant was recorded on 26th March 2015, while the confessional statement was recorded after delay of 13-days of such disclosure, as such, question arises in a prudent mind that if the appellant was confessing his guilt by recording his extra judicial confession, thus the Investigating Officer in order to eliminate any ambiguity should have produced the appellant before Magistrate on the said date for recording his confessional statement, but this has not been done so. As mentioned above, the confessional statement of an accused can only be admissible under the law, once the Court has satisfied that the same has been recorded voluntarily , while the above narrated facts clearly diminishes the elements of volunteer and true confession in the case in hand. Thus, for such reasons, it is held that the confessio nal statement is inadmissible in evidence is therefore, ruled out of consideration. The Hon'ble Supreme Court of Pakistan in the case of State v.
Minhun alias Gul Hassan, reported in PLD 1964 SC 813 , has held that As far the confessions the High Court, it appears, was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself and if the confessions were found to be true and voluntary , then there was no need at all to look for further corroboration. It is now well-settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement."
16. So far the extra judicial confession Ex.P/2-B of appellant is concerned, suffice to observe here that it was recorded on 26th March, 2015 under the supervision of Amir Peeter , DSP. The police is claiming that the same is also volunteer , however , as discussed above whilst getting recorded his confessional statement the appellant informed the Magistrate that he was tortured by the police, thus under the circumstances application of third degree treatment cannot be ruled out of consideration, when more particularly it is very easy to procure the extra judicial confession of an accused as it can be cultivated at any time, therefore, it is considered as a weak piece of evidence and Court would expect sufficient and reliable corroboration for such type of evidence. Hence, no weight can be given to such disclosure. This view is based upon the dictum laid down in the cases of Sarfraz Khan v. The State 1996 SCMR 188 and Muhammad Rafiq v. The State 2009 YLR 1279 . Reliance has also ban solicited from the case of Wazir Muhammad and another v . State 2005 SCMR 277 , wherein it was held that: "There is no cavil with the proposition that the extra judicial confession is a very weak type of evidence and no conviction could have been awarded without having strong corroboration which aspect of matter hardly needs any comments because the statement of Muhammad Ashiq (PW.2) itself is not worthy of credence and once it is disbelieved no corroboration could be sought from his statement and question of corroboration becomes immaterial."
17. Since it is a case of circumstancial evidence, thus in order to place reliance on such type of evidence, strict guidelines and principles have been laid down by the superior Courts. It has remained the consistent view of the superior Courts that circumstantial evidence may sometimes appears to be conclusive, but it must always be narrowly examined, because procuring, such type of evidence can be cultivated at any time of investigation.
Besides, such type of evidence must be of the nature, where, all circumstances mast be so inter-linked, making out a single chain, an unbroken one, where one end of the same touches the dead body and the other the neck of the accused. Any missing link in the chain would destroy the whole and would render the same unreliable for recording conviction. Reliance, in this regard is placed on the case of Hashim Qasim and another v. The State 2017 SCMR 986 . The relevant portion reads as under: "9. In cases of circumstantial evidence, there are chances of procuring and fabricating evidence, therefore, Courts are required to take extra care and caution to narrowly examine such evidence with pure judicial approach to satisfy itself about its intrinsic worth and reliability , also ensuring that no dishonesty was committed during the course of collecting such evidence by the Investigators. If there are apparent indications of designs on part of the investigating agency in the preparation of a case resting on circumstantial evidence , the court must be on its guard against the trap of being deliberately misled into a false inference. If the court fails to observe such care and caution and hastily relies on such evidence, there would be a failure of justice. Reference may be made to the case of Fazal Elahi v. Crown (PLD 1953 FC 214) and of Lejzor v. The Queen (PLD 1952 PC 109), it was held therein with considerable emphasis that circumstantial evidence may sometimes appears to be conclusive but it must always be narrowly examined, if only became this count of evidence may be fabricated in order to cast suspicion on another , therefore, it is all the more necessary before drawing inference, if the accused' s guilt from circumstantial evidence to be sure and that there are no other co-existing circumstances which weaken or destroy the inference then, in that case alone it may be relied upon otherwise, not at all."
18. The overall reappraisal of the entire prosecution evidence would establish the fact that the prosecution has failed to substantiate the charge against the appellant through confidence inspiring evidence. On the one hand, the prosecution has failed to establish the ownership of the appellant in respect of vehicle in question, while on the other hand the extra judicial confessional as well as the confessional statement of appellant appears to have been recorded with torture and pressure. Even otherwise, the prosecution has also failed to produce the material witnesses in the Court as well as the material documents have also not been produ ced. The above legal defects in the prosecution case were not considered by the learned trial Court while passing the impugned judgement. Bare reading of impugned judgement reflects that the same is suffering from misreading, non-reading and mis- appreciation of evidence available on record. The basic principle of law is that the conviction must be based on evidence beyond any shadow of doubt. This principle is enshrined in the Hadith of Prophet Muhammad (Peace be upon him) because damage caused from erroneous sentence is irreversible. It is better to acquit guilty persons than to punish an innocent one had been proclaimed by the Prophet of Islam, which became the guiding principle of the safe administration of justice. Needless to emphasize that an accused is entitled to be extended benefits of doubt as a matter of right, but the same was withheld in his favour in the case in hand. Reliance in this regard is placed on the case of Tariq Pervaiz v. The State 1995 SCMR 1345 , wherein the Hon'ble Supreme Court has held as under: "The concept of benefit of doubt to an accused is deep-rooted in our country . For giving him benefit of doubt it is not necessary that there should be many circumstances creating doubt if there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right."
For the above reasons, the appeal is accepted. The impugned judgment dated 15th February 2020 passed by learned Special Judge Anti Terrorism Court-II Quetta, is set aside and while extending the benefit of doubts, the appellant Soorat Khan son of Rooz Muhammad, is acquitted of the charge. The appellant being in custody; shall be released forthwith, if not required in any other case.