FAROOQ HAIDER, J.---Through instant criminal appeal, Atif Abbas (appellant) has assailed the judgment dated: 14.03.2019 passed by learned Special Judge, Anti-Terrorism Court, Sargodha, whereby in case arising out of FIR No. 23/2018, dated: 25.09.2018 registered under sections 4, 5 of the Explosive Substances Act, 1908, section 13(2A) of the Pakistan Arms Ordinance XX, 1965 and section 7 of the Anti-Terrorism Act, 1997 at Police Station: CTD, District: Faisalabad, learned trial court has convicted and sentenced the appellant as under:-- Convictions Sentences Under section 7 (ft) of ATA, 1997"Rigorous Imprisonment for 14-years" with forfeiture of his property in favour of the State.
Under section 5 of Explosive Substances Act, 1908 "Rigorous Imprisonment for 7-years" with forfeiture of his whole property in favour of the State under section 5-A of Explosive Substances Act, 1908.
Under section 13 of the Pakistan Arms Ordinance, 1965Rigorous Imprisonment for 3-years" along with fine of Rs:20000/- and in default thereof to further undergo one month simple imprisonment.
All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. was also extended to the convict/ appellant.
2. The machinery of law was set into motion by Muhammad Shahbaz, S.I. (complainant/PW-5) through his written statement/complaint (Ex.PA) sent to Police Station: CTD, Faisalabad and briefly as per said written statement/ complaint, on 25.09.2018 at about 04:30 p.m., Muhammad Shahbaz, S.I. (complainant/PW-5) along with his companions/police officials was going towards Shahpur on an official vehicle for searching/arresting proclaimed offenders and when reached at Teen Pulla Canal Bypass near Jhaal Chakian one suspected person was standing there in wait of conveyance while carrying black coloured bag on his shoulder; on seeing police party coming towards him, he started running on back foot towards North, who was chased and apprehended at some distance with the help of police officials; he disclosed his name as Atif Abbas son of Habib Ali (appellant); on search of aforementioned black coloured bag, brownish coloured explosive was recovered from a shopper weighing about 2-kgs, out of which, 5-grams was separated and secured into sealed parcel as sample for chemical analysis while the remaining explosive ( i.e. i.e. case property was also sealed into separate parcel with stamp KM-1/1; on ,further search, safety fuse measuring about 5-feet was recovered, out of which, a piece of 3-inches was also separated and secured into sealed parcel as sample with stamp KM-1; on further search, a match box containing three detonators was also recovered; furthermore, a pistol .30-bore along with magazine and seven live bullets was recovered, which pistol was secured into a sealed parcel with a stamp KM-3; from aforementioned bag, two suits were also recovered; on personal search of the accused, cash Rs.3240/- was recovered; said accused did not produce any license or permit with respect to pistol .30-bore and explosive substance (mentioned above); all sealed parcels of samples, parcels of remaining explosive substance along with safety fuse, match box , detonators, bag with suits -and aforementioned cash amount were taken into possession vide recovery memos.
On the basis of above said written statement (Ex.PA), case vide F.I.R. No.23/2018, dated: 25.09.2018 (Ex.PA/1) was registered under sections 4, 5 of the Explosive Substances Act, 1908, section 13(2A) of the Pakistan Arms Ordinance XX, 1965 and section 7 of the Anti-Terrorism Act, 1997 at Police Station: CTD, District Faisalabad.
On the conclusion of investi-gation, report under section 173, Cr.P.C. was sent to Court, charge was framed against the appellant under section 5 of the Explosive Substances Act, 1908, section 13(2A) of the Pakistan Arms Ordinance XX, 1965 and section 7 (ft) of the Anti-Terrorism Act, 1997, to which he pleaded not guilty and claimed trial.
Prosecution got examined seven witnesses and while giving up Najeeb Ahmad, 920-CP as being unnecessary and tendering reports of Punjab Forensic Science Agency, Lahore regarding explosive material (Ex.P-H), letter No.13001/LA dated: 15.03.2018 regarding requirements about submission of explosive (Pre-Blast and Post-Blast) to P.F.S.A., Lahore (Ex.PI), closed its evidence. Then statement of the accused/ appellant was recorded under section 342, Cr.P.C. in which he refuted the allegations levelled against him; he did not record his statement under section 340(2), Cr.P.C., however, produced documentary evidence in his defence i.e. attested copy of FIR No.576 dated: 17.07.2018 (Ex.DA), photocopies of applications moved by his brother to high-ups of different forums (Mark-A to Mark-K along with postal receipts Ex.DB/1 to Ex.DB/23), letter of Commission of Inquiry on Enforced Disappearances, Directorate General, Civil Defence Building Islamabad (Ex.DC), photocopy of application to Commission of Inquiry, Directorate General, Civil Defence Building, Islamabad (Mark-L/1-2) and closed his defence.
Learned trial Court after conclusion of the trial has convicted and sentenced, the appellant as mentioned above vide impugned judgment dated: 14.03.2019.
3. Learned counsel for the appellant submits that appellant was abducted much prior to the registration of instant case. by the agencies and subsequently he was roped in this case in order to save their skin; further submits that convictions recorded and sentences awarded to the appellant through impugned judgment are against the law and facts of the case and learned trial court failed to, appreciate material available on the record; also adds that impugned judgment is result of misreading and non-reading of evidence, therefore, same is liable to be set-aside. Finally prays for acquittal of the appellant.
4. Conversely, learned Deputy Prosecutor General while controverting the submissions of learned counsel for the appellant has supported the impugned judgment of the learned trial Court by contending that the prosecution has proved its case against the appellant beyond shadow of doubt, thus the appellant was rightly convicted and sentenced; adds that there is no substance in the appeal and same is liable to be dismissed.
5. Arguments heard. Record perused.
6. It has been noticed that for proving aforementioned recovery of 2-kg explosive substance , preparing a separate sample of 5-gram out of the same and securing through separate parcels, recovery of safety fuse comprising upon 5-feet length, taking a piece of 3-inches from the same as sample and preparing a separate parcel in said regard, recovery of 3-detonators out of match box, recovery of pistol .30-bore along with magazine and seven live bullets and securing said pistol .30-bore through parcel, recovery of clothes and amount (mentioned above) from the possession of the appellant through recovery memo. (Ex.PD), prosecution produced Muhammad Shahbaz S.I., CTD, Sargodha (complainant/PW-5) and Abdul Jabbar 616-Corp oral, CTD, Sargodha (recovery witness/PW-6), who categorically deposed and supported case of the prosecution through their statements recorded during trial of the case, their testimony remained un-shattered in spite of searching cross-examination and their credit could not be shaken, any enmity or animosity whatsoever with respect to deposing falsely against the appellant by said witnesses could not come on record. Needless to observe that police officials are as good witnesses unless it has been proved that they are having ill will or animosity against the accused/convict; in this regard, reliance is placed upon the case of "Naseer Ahmad v. The State" (2004 SCMR 1361) and "Tang Mehmood v.
The State through Deputy Attorney-General, Peshawar" (PLD 2009 SC 39). Therefore, recovery of aforementioned articles from possession of the appellant has been proved by the prosecution.
Prosecution has also proved that after recovery of aforementioned articles from possession of the appellant, same were handed over to Shabraiz Hussain, Inspector (Investigating Officer/PW-7), who handed over the same (except detonators) to Muneeb-ur-Rehman, 860-Corporal (Moharrir/PW-3), who kept the same in safe custody and then handed over aforementioned parcels of samples i.e. of explosive and safety fuse as well as parcel of pistol to Qamar-ul-Islam (PW-2), who delivered the same intact to Punjab Forensic Science Agency, Lahore; aforementioned witnesses stated about aforesaid facts in their testimony in the Court and their evidence remained un-shattered; therefore, safe custody of aforementioned articles (except detonators) has also been proved beyond shadow of doubt. Report of Punjab Forensic Science Agency, Lahore (Ex.PH) shows that aforementioned stated explosive was dynamite, which is a high explosive and aforementioned parcel of safety fuse was a low explosive. Similarly, report of Punjab Forensic Science Agency, Lahore (Ex.PG) reveals that aforementioned pistol was found to be in mechanical operating condition, therefore, prosecution has proved recovery of aforementioned explosive as well as safety fuse and aforementioned pistol .30-bore in working condition from the possession of the appellant beyond shadow of doubt.
7. As far as recovery of aforementioned stated 3-detonators from possession of the appellant 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.PB) any colour, type, gauge, name of metal e.g. Aluminum etc. or even availability of metal tube is not mentioned; similarly, Bomb Disposal Commander (PW-4) neither extracted any explosive from stated detonators nor mentioned its origin/detail; in this regard, relevant portion of his statement is being reproduced:- "I did nor extract the explosive from the detonators"
Therefore, aforementioned report of Bomb Disposal Commander is mere ipse dixit and cannot be made basis to hold that stated detonators were actually detonators falling within the definition of Explosive Substances Act, 1908. Furthermore, it was essential to take out explosive material from the instrument statedly called as detonator and then have verification of the same from the expert and in this regard, prosecution's own document brought on record of this case as "requirements about submission of explosive (Pre-Blast and Post-Blast)" bearing Letter No.13001/L.A. dated: 15.03.2018, can be safely' referred, which has been got exhibited by the prosecution as Ex.PI.; relevant portion of the same is hereby reproduced: - "Only the 2-5 gram chemical/ suspected explosive material recovered from the explosive devices i.e. detonators, hand grenades, suicide jackets, mines and UXO in sealed and labeled parcel should be submitted for analysis."
(emphasis added)
However, admittedly in the instant case, Muhammad Riaz (Bomb Disposal Commander/PW-4) neither took out/ extracted explosive from stated detonators nor sealed/sent the sample to Punjab Forensic Science Agency, Lahore for analysis. Hence, it could not be proved that statedly recovered detonators were containing any explosive substance. Even otherwise, Bomb Disposal Squad is meant to defuse the stated/expected explosive and prosecution could not produce any document/notification in the case to show that Bomb Disposal Commander (PW-4) is an expert within the meaning of Article 59 of Qanun-e-Shahadat Order, 1984 to conclusively opine about nature of the explosive rather aforementioned document produced and tendered by the prosecution i.e. Ex.PI itself reflects that sample of explosive shall be taken out from recovered detonators and sent to Punjab Forensic Science Agency, Lahore for expert opinion to know its origin/nature, hence, Punjab Forensic Science Agency, Lahore is notified expert in the case.
Therefore, conviction recorded against the appellant to the extent of recovery of said statedly recovered detonators is not sustainable.
8. As far as conviction of the appellant under section Am of the Anti-Terrorism Act, 1997 is concerned, suffice it to say that any relationship of the appellant with any terrorist, terrorist organization/ proscribed organization could not be established, any material/ evidence to fulfil ingredients of the offence defined under section 6(2)(ee) of Anti-Terrorism Act, 1997 could not be brought on record by the prosecution and furthermore, Shabraiz Hussain, Inspector CTD, Sargodha (Investigating Officer/ PW-7) stated during his statement before the Court as under: - "I did not make any investigation regarding the person to whom the accused wanted to hand over the above said articles. I did not write to my high-ups that further investigation in the case is to be made. I did not collect any evidence which shows that accused had affiliation with any banned organization." In view of above, prosecution could not prove charge regarding offence under section 7(ff) of Anti-Terrorism Act, 1997 and in this regard, reliance is placed upon the case of "Ghulam Hussain and others v. The State and others" (PLD 2020 Supreme Court 61). Therefore, conviction recorded and sentence awarded to the appellant under section 7(ff) of Anti-Terrorism Act, 1997 is not sustainable.
9. 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. while appearing his own witness in support of his version but he did not opt so. Although non-appearance of accused under section 340(2), Cr.P.C. for disproving allegation levelled against him, does not create any inference against him. yet when he has taken specific plea and regarding said plea, he is the best witness, then he can prove his said version by appearing so and his non-appearance is to be taken as withholding the best evidence. Furthermore, appellant has produced copy of F.I.R. (Ex.DA) which was got recorded by his real brother namely Qamar Abbas regarding his said abduction but he did not produce his said brother in support of the same and again withheld best evidence. Appellant also produced written fetter statedly sent by Commission of Inquiry on Enforced Disappearances Directorate General Civil Defence Building, Islamabad (Ex.DC) m Qamar Abbas but even in said regard appellant did not produce said Qamar Abbas; other photocopies of applications statedly given by his said brother, his father and others from Mark-A to Mark-K along with postal receipts (Ex.DB-1 to Ex.DB-23) and Mark-L/1-2 containing particulars of the appellant in application of aforementioned Commission of Inquiry were neither got duly proved nor any one was produced in support of the same. Mere production of aforementioned postal receipts ipso facto does not advance defence plea/ version. Perusal of aforementioned copy of FIR (EX.DA) reflects that it was merely containing stamp of police station and not containing certificate as required under Article: 87 of Qanun-e-Shahadat Order, 1984. It goes without saying that certified copy of a public document is issued under Article: 87 of Qanun-e-Shahadat Order, 1984 and for ready reference, same is hereby reproduced: - "87. Certified copies of public documents.---Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor, together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by, such officer with his name and his official title, and shall be sealed, whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies." (emphasis added)
Perusal of aforementioned article reveals that until copy has not been issued by concerned custodian and certificate regarding its correctness is mentioned therein till then, neither it can be termed as "certified copy" nor any value can be attached with the same, so, afore-mentioned copy of FIR (Ex:DA), which was only containing stamp of the police station and neither name of the person who issued the same or any certificate regarding its correctness is available in the same, can neither be termed as certified copy nor any value can be attached with the same.
It is trite law that producing/ exhibition of documents and proving the same are different things; admissibility of document in evidence would not absolve the party from proving its contents; party relying on documents is bound to prove the same and documents not proved in evidence could not be considered as legal evidence of a fact; in this regard, guidance has been sought from the case of "Khan Muhammad v. Muhammad Din through LRs" (2010 SCMR 1351), "State Life Insurance Corporation of Pakistan and another v. Javaid Iqbal (2011 SCMR 1013) and "Dawa Khan through L. Rs. and others v. Muhammad Tayyab" (2013 SCMR. 1113).
Nutshell of the above discussion is that aforementioned documents produced in defence by the appellant during his statement recorded under section 342, Cr.P.C. could not be duly proved and similarly aforementioned stance/version of the appellant could not be proved.
10. Now, when case of the prose-cution has been kept in juxta position with aforementioned defence version/plea taken by the appellant, then it is crystal clear that defence version neither could be proved nor could create any dent in the case of the prosecution rather prosecution version to the extent of recovery of 2-kgs explosive aforementioned safety fuse and pistol .30-bore along with magazine and bullets (mentioned above) from the possession of the appellant has been proved beyond shadow of doubt.
11. In view of what has been discussed above, conviction recorded and sentence awarded to the appellant under section 7(ff) of Anti-Terrorism Act, 1997 is hereby set-aside. Conviction recorded against the appellant under section 5 of Explosive Substances Act, 1908 to the extent of recovery of 2-kgs explosive and 5-feet safety fuse, is maintained but sentence awarded to the appellant is reduced from seven years rigorous imprisonment to "three years rigorous imprisonment", forfeiture of property of the appellant under section 5(A) of the Act (ibid) is also maintained whereas conviction recorded and sentence awarded to the appellant under section 13 of the Pakistan Arms Ordinance XX, 1965 regarding recovery of pistol .30-bore, is maintained. Afore-mentioned sentences will run concurrently and benefit of section 382-B, Cr.P.C. will be extended to the appellant. With the above modification, instant criminal appeal stands dismissed.