SH. KHIZAR HAYAT, J.--- Ali Muhammad alias Ali, aged 21 years, resident of Kat Ghulam RaSOol Dakhli, Mauza Araian; (2) Shamshad Ahm ad Khalid, aged 28 years, resident of Mecleold Ganj, Tehsil Minchanabad, (3) Rashid Ahmad alias Sheeda aged 32 years; and his brother (4) Nazar Hussain alias Najja aged 25 years, residents of Chak No.168/7-R, Tehsil Fortabbas, District Bahawalnagar, have teen convicted under Explosive Substances Act V1 of 1908 (section not mentioned) and sentenced to 14 years' R.I. Each with a direction that whole of their movable and immovable properties shall be forfeited to the Government, vide judgment dated 21-7-1990, pied b S y Special Court constituted under Suppression of Terrorist Activities (Special Courts Act, 1975. They have appealed.
2- The prosecution case set up in the F.I.R. (Exh.P.A.) lodged by Sana-ul-Haq, Inspector (P.W.S) is as follows:-- On 4-8-1987 Rashid Ahmad and Ali Muhammad alias Ali (appellants) while in police custody, in connection with cases F.I.R. Nos.182 and 183 of 1987, registered under Articles 3/4 of the Prohibition (Enforcement of Hadd) Order, 1979 at Police Station Fortabbas, disclosed that they had handed over three slabs (Explosive substances) to Nazar Hussain alias Nava (appellant) of Chak No.168/7- R, which they can get recovered. Sana-ul-Haq, Inspector (P.W.5) alongwith A.S.I. Hafiz Muhammad Idris, (P.W.4) and other members of police force reached Chak No.168/7-R and associated Muhammad Ashraf (P.W.3) and Muhammad Afzal Baloch (P.W. Not produced) and raided house of Nazar Hussain alias Najja (appellant) at the pointation of Rashid Ahmad and Ali Muhammad (appellants) but no slab (Explosive substance) was recovered from there. Mst. Safia, sister of Rashid Ahmad (appellant) allegedly stated that fearing detection those slabs were handed over to Nazar Hussain alias Najja who in turn led the police party to a heap of chaff and got three slabs, Exhs.P.1 to P3 (explosive substances) recovered from there, which were seized under memo. Exh.P.D.
Attested by Muhammad Ashraf (P.W.3) and Hafiz Muhammad 1dris (P.W.4) besides the Inspector Sana-ul-Haq (P.W.5). Muhammad Aasi (P.W.2), Inspector of Explosives Department, Government of Pakistan, examined these slabs on 3-11-1987 and found them to be explosive substances dangeorus to human life and property, vide his report (Exh.P.B.). The appellants, with permission of the Commissioner, were challaned to Court.
3. At the trial, the appellants denied the charge and the prosecution in order to prove its case examined five witnesses. Muhammad Ramzan, H.C. (P.W.1) proved formal F.I.R. (Exh.PA./1) drawn up by him on the basis of complaint (Exh.P.A.). Muhammad Aasi (P.W.2) stated that slabs, Exhs.P.1 to P.3, examined by him were found to be dangerous for human life and property. Muhammad Ashraf (P.W.3), Hafiz Muhammad Idris, A.S.I. (P.W.4) and Sana--ul-Haq, Inspector (P.W.5) deposed about the recovery of slabs (P.1 to P.3) effected at the pointation of Nazar Hussain alias Najja (appellant) from a heap of chaff and their seizure under memo. Exh.P.D.
4. The appellants in their statements under section 342, Cr.P.C. Denied the allegations. They also appeared in disproof of the charge under section 340(2), Cr.P.C. And refuted the allegations on oath. Learned trial Court, in para. 6 of its judgment, observing that onus to prove innocence was mainly on accused persons which they have badly failed' and that according to F.I.R. Ali Muhammad accused handed over slabs in question to Shamshad Ahmad Khalid' was sufficient to prove that he was involved with other accused. In para.9 of the judgment, the learned trial Court held that `the prosecution has succeeded in bringing home the guilt of the accused persons to the extent of infnity' and proceeded to convict and sentence the appellants as indicated above. Hence this appeal.
5. Learned counsel appearing on behalf of the appellants has argued that evidence on record is highly insufficient to hold the appellants guilty under the Explosive Substances Act. Learned counsel appearing on behalf of the State, however, defended the impugned judgment.
6. Having gone through the record completely, we would at one say that conviction of Shamshad Ahmad Khalid (appellant) is not at all maintainable as there is not an iota of evidence present on record to implicate him. Learned trial Court has illegally read the F.I.R. In evidence against him which is not substantive evidence. As for Ali Muhammad and Rashid Ahmad (appellants) it may be stated that according to the prosecution both these appellants being under custody on 8-4-1987 pointed out a place in the house of Nazar Hussain alias Najja for the recovery of slabs (explosive substances) but nothing was recovered in consequence to the pointation made by them, therefore, it is not proved that they had ever possessed the slabs (explosive substances). Learned trial Judge obviously has fallen in error in convicting these three appellants because according to him it was the duty of the accused/appellants to prove their innocence, as is apparent from his observation made in para. 6 of the judgment i.e. ---onus to prove innocence was mainly on the accused persons which they have badly failed---. This is absolutely illegal and an incorrect approach. The learned Special Judge should have known by now the elementary principle of criminal administration of justice that in a criminal trial the initial burden of proving its case beyond reasonable doubt always rests on the prosecution. In this case, as observed earlier, the prosecution has not discharged its onus successfully, therefore, we have no option but to set aside the convictions and sentences of Shamshad Ahmad, Ali Muhammad and Rashid Ahmad (appellants) and so they are acquitted.
7. Now we take up the case of Nazar Hussain alias Najja (appellant). The allegation against him is that he led the police party to a heap of chaff and got recovered the explosive substances (slabs, P.1 to P.3) in the presence of Muhammad Ashraf (P.W.3), Hafiz Muhammad Idris, A.S.I. (P.W.4) and Inspector Sana-ul-Haq (P.W.5). It appears that the learned trial Court conveniently ignored the evidence of P.Ws. And did not discuss their deposition nor gave reasons for relying upon their testimony. Muhammad Ashraf (P.W.3) stated that he was associated with the police party from Fortabbas and witnessed recovery of the slabs (P.1 to P.3) from Nazar Hussain alias Najja effected from the heap of chaff and seized under memo. Exh.P.D. In cross--examination he admitted that he appeared as P.W. Alongwith Inspector Sana--ul-Haq against Nazar Hussain alias Najja in the Court of S.D.M., Fortabbas, in cases F.I.R. Nos.192/87 and 197/87 but he was acquitted on 27-12-1987. On confrontation with his statement (Exh.D.A.) it was found not recorded therein that 'Nazar had told that the slabs were kept by him in the heap of chaff'. The other recovery witness, Hafiz Muhammad Idris, A.S.I. (P.W.4) stated that on 4-8-1987 Rashid Ahmad and Ali Muhammad (appellants) while under arrest got recovered three slabs (explosive substances). He further stated that Nazar Hussain alias Najja telling the Inspector (P.W.5) that he had kept the slabs in heap of chaff got them recovered at his pointation which were seized under memo. Exh.P.D. Signed by him, Muhammad Ashraf and Afzal P.Ws. But in cross-examination he clearly admitted that `no slabs were recovered from Nazar Hussain and Abdul Rashid accused'. The third recovery witness is Sana- -ul-Haq Inspector (P.W.5). He stated that Ali Muhammad and Rashid Ahmad (appellants) were arrested in case F.I.Rs. Nos.182 and 183 of 1987. They disclosed that they had handed over three (explosive substances) to Nazar Hussain (appellant) and they can get them recovered. According to him Ali Muhammad (appellant) alone pointed out residential Kotha of Nazar Hussain (appellant) and then pointed out the place where slabs were kept in a heap of chaff and got them recovered accordingly. He further stated that Nazar Hussain (appellant) got recovered three slabs (P.1 to P.3) from the heap of chaff which were secured under memo. Exh.P.D. He said that he did not remeber if any corruption case was got registered against him by Allah Dad, father of Rashid Ahmad, appellant. He, however, conceded that due to that enmity he had involved sons of Allah Dad i.e. Rashid Ahmad and Nazar Hussain alias Najja (appellants) in a number of cases
8. It is in evidence that the aforesaid recovery witnesses appeared in two other criminal cases as well against Nazar Hussain (appellant) but the appellant was acquitted from those cases. It means that their testimony was disbelieved in those cases. Sana-ul-Haq Inspector (P.W.5) though expressed ignorance about registration of a corruption case against him by Nazar Hussain appellant's father yet he admitted that due to enmity he had involved his sons. With this admitted background of enmity his evidence can be accepted only if it is corrobroated by evidence of unimpeachable character which is lacking as the evidence adduced in the case by the prosecution is highly discrepant and shaky. Sana-ul-Haq, Inspector (P.W.5) stated that it was Ali Muhammad on whose pointation the slabs in question were recovered from heap of chaff. If it were so then how could the same slabs (P.1 to P.3) one again be recovered at the instance of Nazar Hussain alias Najja (appellant) from the same heap of chaff. Hafiz Muhammad Idris, A.S.I. (P.W.4) the other recovery witness, clearly stated that no slabs were recovered from Nazar Hussain alias Najja (appellant). In Lace of these assertions made by P.W.4 and P.W.5, we are not convinced that recovery of the slabs in question was proved beyond reasonable doubt to have been effected from Nazar Hussain alias Najja (appellant) as well. His conviction and sentence also, therefore, cannot be sustained and consequently we set aside his conviction and sentence and acquit him. The appellants were released by our short order on 6-3-1991 and these are the reasons for the same.