ABDULLAH BALOCH, J. This judgment disposes of Criminal Appeal No. 625 of 2021 filed by the appellant (convict) Shabir Ahmed alias Nako son of Dad Muhammad, against the judgment dated 16th December 2021, ("the impugned judgment") passed by Special Judge, Anti-Terrorism Court Pishin ("the trial Court"), whereby the appellant was convicted under Section 5 of the Explosive Substances Act, 1908 read with Section 7 of ATA, 1997 and sentenced to suffer five (05) years R.I., with the benefit of Section 382-B, Cr.P.C.
2. Facts of the case are that on 29th June 2021, the complainant Rehmatullah, SI/CTD Pishin, lodged FIR No.50 of 2021 at Police Station CTD Quetta, under Sections 4, 5 of Explosive Substances Act read with Section 11-F(1) (2) (1) of ATA, 1997, with the averments that on 29th June 2021, at about 04.25 p.m. pursuant to prior information received, the CTD officials apprehended the appellant near WAPDA Office Pishin and recovered explosive material weighing 2-Kgs, 3-feet 'prima card and amount of Rs.600/- and CNIC from his possession, which he knowingly possessed under such circumstances as to give rise to a reasonable suspicion that he did not possess them for a lawful object. Secondly, that he is the member of a proscribed organization i.e. Baloch Liberation Army (BLA).
3. In pursuance of above FIR, the appellant was arrested, who was subjected to investigation and on completion thereof he was remanded to judicial custody. On receipt of challan, the trial Court initiated proceedings under Sections 87 and 88, Cr.P.C. and declared proclaimed offenders to absconding accused namely Sadam son of Ismail, Amir Jan son of Abdul Wahid, Rehman Gul alias Aziz son of Muhammad Afzal and Naqeebullah alias Pehlwan son of Abdul Wadood. Whereafter, the trial Court indicated the charge and after refuting the same by the appellant; the prosecution in order to establish the charge produced the evidence of seven (07) witnesses, whereafter the appellant was examined under Section 342, Cr.P.C. The appellant recorded his statement on oath under Section 340(2), Cr.P.C. and also produced three witnesses in his defence. On conclusion of the trial, the appellant was convicted and sentenced as mentioned above. Whereafter the instant appeal has been filed.
4. Heard the learned counsel for the parties and perused the available record. Perusal of record divulges that allegedly the appellant was arrested on 29th 2021 from Pishin with the allegations of recovery of explosive substances and also it was alleged against him that he belongs to proscribed Organization BLA. On the other hand, the appellant disputed his arrest from the place, date and time as alleged by the prosecution and he has taken the plea that he was arrested on 12th March 2021 from the area of Kolwa Bazar Turbat when he along with his wife and a minor children were going to their home on a motorcycle. Anyhow, it is a case of two versions, thus it is necessary to first discuss the prosecution version.
5. The prosecution in order to establish the charge has produced the evidence of seven witnesses, but minutely scrutiny of the same establishes the fact that the same are contradictory and not worth credence. The complainant of the case Rehmatullah, SI, appeared as PW-1, who mostly reiterated the contents of his fard-e-bayan and narrated the story with regard to apprehending of appellant and recovery of alleged explosive substances from his possession. However, admitted in his cross-examination that the appellant is permanent resident of Turbat and the appellant is not aware about the streets of Pishin. PW-1 admitted that no any incriminatory material was recovered from the possession of appellant linking him with the proscribed Organization BLA. However, denied the suggestion that the appellant had been abducted by the secret agencies, which fact was highlighted by his relatives through social media and also reported the matter to Police Station.
PW-2 Kaleemullah, ASI, is the recovery witness and he had also accompanied the raiding party at the relevant time. PW-2 is also witness of alleged disclosure recording during investigation, which he produced in the Court as Ex.P/2-A. PW-3 Nadeem Hameed, ASI, being Duty Officer at Police Station, CTD Quetta, pursuant to Murasila recorded the FIR. PW-4 Muhammad Saleem, ASI, took the parcels to PFSA for analysis. PW-5 Azhar Hussain, H/C Crimes Branch, being explosive expert and narrated the procedure adopted by the Bomb Disposal Teach and also issued Certificate Ex.P/5-A.
PW-6 Farhan Qayyum, being lncharge of Maalkhana received the seal parcels from I.O. and kept the same in the Maalkhana.
PW-7 Maqbool Ahmed, IP is the Investigating Officer of the case, who counted the steps taken by him during the course of investigation.
6. Now adverting to the plea taken by the appellant, suffice to observe here that the appellant has disputed his arrest from the place, date and time. He in his oath statement stated that he was arrested on 12th March 2021 from the area of Kolwa Bazar Turbat when he along with his wife and a minor children were going to their home on a motorcycle. He produced his wife as DW-1 Mst. Zohra, his mother Mst. Jan Bibi as DW-2 and Amir Baldish, his neighbor as DW-3. All the defence witnesses fully corroborated the plea taken by the appellant and also produced the banners, photographs extracted from social media highlighting their protest with regard to forced missing of appellant, wherein they agitated with regard to forced missing of appellant and protesting for his safe release.
7. If both the pleas are taken into consideration in juxtaposition, the plea taken by the defence is more convincing. The family of the appellant protested for safe release of appellant. It has also come on record that the appellant is permanent resident of Turbat and his arrest from the district Pishin allegedly having explosive substances is highly improbable and does not appeal to the logic.
Though, the prosecution has alleged that the appellant belongs to proscribed Organization BLA, but in support of such contention not a single piece of evidence has been produced B in the Court to substantiate the charge.
8. So far as the alleged disclosure of the appellant Ex.P/2-A is concerned, suffice to observe here that in the said disclosure the appellant allegedly confessed his guilt that he belongs to proscribed organization BLA, but the fact remains that the said disclosure was recorded on 2nd August 2021, while the appellant was arrested on 29th June 2021, which shows that the appellant was kept under detention for more than the prescribed period of remand/investigation as provided under the law.
The Investigating Officer admitted in his cross-examination that the appellant was remained under investigation for 35-days. The prosecution has failed to justify the illegal detention of the appellant for 35-days, when the law of, the land provides 14-days period for investigating of any prisoner.
Since, the appellant remained under detention illegally and beyond the period under the law, thus the entire investigation is nothing, but nullity in the eyes of law, which fact alone is enough to discredit the entire case of prosecution.
9. All the above infirmities have created sufficient doubts in the case of prosecution and under the law the appellant is entitled to get the benefit of the same, but the same was not extended in his favour by the trial Court. The perusal of impugned judgement reveals that the same is suffering from misreading, non-reading and mis-appreciation of evidence available on record. The above defects in the prosecution case were not considered by the learned trial Court while passing the impugned judgement. It is well settled principle of law that a wrongful conviction results into injustice, the first tragedy is to the innocent person; the second is to the victim of the offence and to society, because the real offender is not brought to justice, wrongly conviction undermine the credibility of the legal system, whenever witnesses are mistaken, it is rarely because they lie or misrepresent the facts. Needless to emphasize that accused was entitled to be extended benefits of doubt as a matter of right, but the same was withheld. Even an accused cannot be deprived of benefit of doubt, merely because there is only one circumstances, which creates doubts in the prosecution story. 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 that, "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 allowed. The impugned judgement dated 16th December 2021 passed by learned Special Judge, Anti-Terrorism Court Pishin is set aside and while extending the benefit of doubt, the appellant Shabir Ahmed alias Nako son of Dad Muhammad is acquitted of the charge. The appellant is on bail; his bail bonds are discharge after lapse of appeal period.
Above are the reasons of our short order dated 21st September, 2021.