IQBAL AHMED KASI, J.---Through the instant appeal, appellant has challenged the validity of the judgment dated 20.12.2022 ("the impugned judgment") passed by the learned Special Judge Anti- Terrorism Court, Loralai ("the trial Court"), whereby, the appellant was convicted and sentenced as follows: "i. Under Section 7(f-j) of the Anti Terrorism Act, 1997, the accused Abdul Aziz alias Saddam son of Muhammad Essa is sentenced to suffer R.I for fourteen (14) years and forfeiture of his property in favour of the State. The benefit of the period of detention during the course of the ongoing trial against the under trial accused persons contained in section 382-B of the Code of Criminal Procedure, 1898 read with section 32(1) of the Anti Terrorism Act, 1997 is also granted as a matter of right."
2. The concise facts, arising out of the instant appeal are that FIR No.12/ 2022, under Section 11/F,11/J, 7-ATA read with Sections 4, 5 of Explosive Act, 1908 (' the Act of 1908') has been registered on 2nd of August,2022, at 11:20 a.m., by the complainant Muhammad Munir SI/SHO at Police Station CTD, Loralai, alleging therein that on spy information member of banned TTP had been coming towards Duki and was present in dry stream near Grid Station with explosive to carry out terrorist activities.
On such information, at about 08:20 a.m., he along with other CTD officials reached at the spot and started surveillance. DSP along with Bomb Disposal (BD) team also reached there and they conducted search from both sides of the dry stream. A person was found while hiding in the bushes, on seeing Police party he tried to escape, but he was apprehended. He disclosed his name as Abdul Aziz alias Saddam. On his personal search, he was found in possession of 1500 grams explosive substances, three feet nine inches long primer cord and a detonator tied in a cloth round his waist. The detonator was dangerous so it was destroyed by BD team. The appellant/accused was arrested and the recovered explosives were taken into custody.
3. After usual investigation, challan was submitted before the trial Court against the appellant/accused. A formal charge was framed and read over, to which the appellant/accused pleaded not guilty and claimed trial. At trial, the prosecution produced following four witnesses in order to establish the charge; PW-1 Muhammad Munir, IP, is the complainant, who lodged FIR through his Murasila as Ex. P/1-A .
PW-2 Hakim Ali, SI, is the witness of recovery memo as Ex.P/2-A of the explosive . substance and primer cord in sealed parcel Nos. 1, 1-A, 2 and 2-A as Art.P/1 to Art.P/13. He is also witness of site inspection memo as Ex.P/2-B and of recovery memo as Ex.P/2-C of cash amount of Rs.2,000/- as Art.P/14. He is also witness of delivery of parcel to PFSA", Lahore.
PW-3 Kamran Malik, ASI, is Head Muharar of CTD Loralai, who kept the parcels and cash amount of Rs.2,000/- in his custody.
PW-4 Rana Shabir Ahmed, IP, is the Investigating Officer, who after lodging FIR as Ex.P/4-A, received certificate from BD team as Ex.P/4-B, inspected the site and prepared the map as Ex.P/4-C. He sent Murasilas as Ex.P/4-D and Ex.P/4-E for analysis of recovered explosives and for prosecution sanction. He produced copy of CNIC of accused as Ex.P/4-F and filed incomplete Challan as Ex.P/4- G. on receiving FSL " report as Ex.P/4-H, SHO filed supple-mentary challan as Ex.P/4-I.
4. On completion of prosecution evidence, appellant/accused was examined under Section 342, Cr.P.C, wherein, he categorically denied the allegations levelled against him and raised the plea of innocence. He also recorded his statement on oath under Section 340(2), Cr.P.C and produced in his defence one witness DW-1, Fateh Muhammad.
5. On conclusion of trial, the arguments were heard from both sides and the trial Court, convicted the appellant/ accused as mentioned in para supra, vide impugned judgment dated 20th December, 2022, hence this appeal.
6. Learned counsel for appellant contended that the impugned judgment is contrary to the facts and law; that the trial Court without seeking sanction of the Government to try the case, passed the impugned judgment, which is not in accordance with law; that the allegations of committing terrorism is not proved by the prosecution; that there are major contradictions between the statements of complainant and eye-witnesses; that the prosecution has failed to produce BD Commander, as per prosecution, it destroyed the detonator.
7. On the other hand, learned APO opposed the contention of learned counsel for appellant/accused and stated that a prompt FIR was lodged, wherein, the accused was specifically nominated; that a huge quantity of explosive substances was recovered in the presence of witnesses from possession of the appellant, which were sent to PFSA, returned with positive report. He supported the judgment of trial Court on the ground that the impugned judgment is passed on legal as well as factual evidence and there is no occasion to interfere in the same.
8. We have heard learned counsel for parties at length and perused the evidence and documents available on record. The prosecution has failed to prove its case against the appellant/ accused for the reasons that the evidence brought on record by the prosecution is contradictory on material particulars of the case. The complainant stated that detonator was destroyed being dangerous, while all the witnesses in this regard are silent. The BD team, as per PW-1, who destroy the detonator was neither examined during the investigation nor produced before the trial Court.
The PW-1 in his testimony contended that 05 grams of explosive substances was separated for chemical examination and sealed in parcel No. 1, while PW-2 appeared in witness box produced the parcel No.1 and articled the same as Parcel No. 1. Contrary to the facts that parcel No.1 and parcel No.2 were sent to Punjab Forensic Sciences Agency for analysis, the question arises that if the parcel Nos.1 and 2 sent to analysis, then how PW-2 produced the same before the trial Court, which created doubt in the prosecution story. PW-3 is Head Maharar of Police Station and he is the witness of safe custody. He deposed that recovered explosive sealed parcel were handed over to him, but he did not utter a single word that when he handed over the parcel Nos.1 and 2 to the person, who took the same to the PFSA. The above contradiction on the part of the witnesses, make the prosecution case doubtful.
9. As far as, recovery of above mentioned detonator from the possession of appellant/accused is concerned, it is important to mention here that detonator comprises upon elongated hollow metal tube containing explosive, however, in the report of Bomb Disposal Commander (Ex.P/4-B) any colour, type, gauge, name of metal e.g. Aluminum etc. or even availability of metal tube is not mentioned; similarly, Bomb Disposal Commander neither extracted,. any explosive from stated detonators nor mentioned its origin/detail. It is worthwhile to mention here that none of the Bomb Disposal team has been produced during the trial by the prosecution, therefore, aforementioned report of Bomb Disposal Commander is mere ipse dixit and cannot be made basis to hold that the alleged detonator was actually detonator falling within the definition of Act of 1908. The offence under Section 5 of the Act of 1908 was charged against the respondents, but according to Section 7, of the said Act, prior permission for prosecution by the competent authority was required. For ready reference it would be appropriate to reproduce the relevant provision, which reads as under:- "7. Restriction on trial of offence, No Court shall proceed to the trial of any person for an offence against this Act except with the consent of *** the [Provincial Government] [to which intimation shall be sent within two days of the registration of the case:] [Provided that if the consent is neither received nor refused within sixty days of the registration of case the Government such consent shall be deemed to have been duty given.]"
It is crystal clear from the bare reading of the above mentioned provision of law that sanction for prosecution for holding trial under Explosive Substances Act is mandatory and a condition precedent for prosecution, of the respondents, under Section 5 of the said Act. In absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction. The word "shall" used in above mentioned Section, leaves no room for any departure there from.
10. As far as, allegations against the appellant is concerned, it is suffice to say that no relationship of appellant with any terrorist organization/proscribed organization could be established in material/evidence to fulfill ingredients of the offence, defined under Section 6(2)(ee) of the Anti- Terrorism Act, 1997. Further-more, PW-4 Rana Shabir Ahmed, IP/Investigating Officer, stated during his statement before the Court that there is no evidence to prove that during investigation, he could not take in evidence, which show that the appellant/convict is member of any terrorist organization, thus, the prosecution has failed to prove the charge against the appellant/convict. Reliance is placed to the case of "Ghulam Hussain and others v. The State and others" PLD 2020 Suprem e Court 61.
11. Now adverting to the defence version, appellant has taken specific plea that he was abducted much prior to the registration of present case and subsequently roped in this case at belated stage; in this regard, he was himself a best witness to depose entire detail that who abducted him, where he was kept, when he was brought to the place of occurrence and of course law has provided a chance to him in this behalf through Section 340(2), Cr.P.C.
In view of what has been discussed above, the instant appeal is allowed, the impugned judgment dated 20th December, 2022, passed by the Special Judge of ATC Court, Loralai, is set aside and the appellant Abdul Aziz alias Saddam son of Muhammad Essa is acquitted of the charge in case FIR No. 12 of 2022, registered with Police Station CTD, Loralai. The appellant is in custody, he shall be set at liberty, if not required in any other case.