' ABDUR REHMAN KHAN, J.--- The appellant, namely, Muhammad Rehman was tried by Mr. Inayatullah Khan, Special Judge, Mardan (Sessions Judge) under sections 4 and 5 of the Explosive Substances Act, 1908 and was convicted/sentenced as under:--
(i) Awarded five years' R.I. For having committed an offence punishable under section 5 of the said Act, and
(ii) All movable as well as immovable property confiscated in favour of the State.
2. Aggrieved by the said order of the Special Judge, dated 19-9-1994 the appellant has directed this appeal for the redress of his grievance and has challenged the validity/vires of the impugned judgment.
3. The prosecution case as disclosed in the First Information Report (Exh.P.A.), in brief, is that it was on 4-8-1993 that the Excise Inspector Farman Said (P.W.2), along with some of the Foot Constables of his Department, had held a Nakabandi near Sange Marmar Koroona situated on Swabi Road for the checking of the vehicles which came from Mardan side. It was at about 12-30 hours that a Flying Coach, Registration No,SB-1245 arrived there came from Mardan side. It was signaled to stop.
The staff checked the Flying Coach. Since the appellant was found sitting in it under mysterious conditions, therefore, he was also searched. A gunny bag (Boari) Exh.P.1 was recovered from his possession. When the gunny bag was checked, a crate was found lying in it. The crate was accordingly opened which resulted in the recovery of hand grenades (ten in number) along with ten fuses. All these were concealed beneath the grapes packed in the crate in question.
4. Inspector Farman Said (P.W.2) vide recovery memo. Exh.P.B., took the crate into his possession in the presence of Excise Constable Chitlam Nabi (not produced) and Excise Constable Muhammad Ghufran (P.W.3).
5. Thereafter, the seizing officer (P.W.2) scribed Murasila (Exh.P.A/1) and sent the same to the Police Station "B" Division, Mardan, where on its basis, F.I.R. (Exh.P.A.) was registered by Sub-Inspector Gul Muhammad Khan (P. W.5).
6. The investigation in the case was entrusted to S.H.O. Police Station, Chorra Ghaffar Ali Khan (P.W.4). He recorded the statements of the witnesses hailing from the Excise and Taxation Department Mardan. Vide recovery memo. (Exh.P.C.) the Investigating Officer recovered a letter from the pocket of the appellant, written in Pushto language. This letter was allegedly written by one Hamesh Gul and was addressed to Rehmatullah in respect of the hand grenades in question.
Recovery memo. Exh.P.C. Was witnessed by two police officials namely Head Constable Police Post Par Hoti Liaqatullah and Sub-Inspector Nazir Ali (P.W.1). Vide application (Exh.P.M.) the hand grenades, 10 in number alongwith the 10 fuses, duly sealed in a parcel, were sent to the Armourer for his expert opinion. The said opinion Exh.P.D. Was sent to the Investigating Officer S.H.O. Ghaffar Ali Khan (P.W.4) then approached the District Magistrate, Mardan and obtained sanction/permission for prosecuting the appellant. After completing the necessary police investigation the case file was handed over to the then S.H.O. Ain-uddin Khan (P.W.6) who submitted complete challan against the appellant in the Special Court, Mardan, for trial.
7. At the trial, the accused pleaded not guilty to the charges levelled against him and stated that he was innocent and falsely charged. He thus, claimed trial.
8. To prove its case, the prosecution examined as many as six witnesses, almost all mentioned above. The accused was examined under section 342, Cr.P.C. He neither chose to be examined; as his own witness, on oath, under section 340(2), Cr.P.C. Nor did he produce any evidence in his defence.
9. After taking into account the prosecution evidence and hearing the counsel for the parties, the Special Judge, Mardan convicted and sentenced him by his impugned judgment referred to in para. 1 . Hence this appeal.
10. We have. Had the advantage of hearing Mr. Khalid Khan, Advocate learned counsel for the appellant and Mr..Khurshid Khan, Additional Advocate-General for the State and have also gone through the record of the case, with some degree of care.
11. It may be mentioned here that the fate of the instant case hinges mainly on the ocular testimony of Excise Inspector Farman Said (P.W.2), Excise Constable Muhammad Ghufran (P.W.3) and Sub- Inspector Ghaffar Ali Khan (P. W.4).
12. At the very outset, the learned counsel for the appellant attacked the evidentiary value of the statement of Excise Inspector Farman Said (P.W.2) on the ground that he is not a truthful witness.
He drew our attention to the fact that according to this witness when the Flying Coach, bearing Registration No,SB1245, came from Mardan side it was stopped and checked. This witness further stated that at that time few other persons were also sitting in the Flying Coach, that they found the appellant-accused was also sitting there in a mysterious. Condition, therefore, they asked the appellant as to who he was. The appellant introduced himself as Muhammad Rehman alias Khushal son of Muhammad Wali, resident of Kunar, Afghanistan. P.W.2 further stated that from the possession of the appellant a gunny bag (Exh.P.1) was recovered. According to him when the gunny bag was opened it was found that it contained a crate (not produced in evidence) being grapes therein, that when the grapes were removed, 10 hand grenades, along with 10 fuses, were recovered from the beneath the grapes. Accordingly the appellant-accused was arrested on the spot. A Murasila (Exh.P.A./1) was drafted under section 4/5 of the Explosive Substances Act, 1908 and the same, along with hand grenades and other articles, was sent to the police station for the registration of the case against the appellant.
13. It may be noted that vide recovery memo. (Exh.P.B.) the crate and the gunny bag (Exh.P.1) were taken into possession alongwith the hand grenades and fuses in the presence of Sepoy Muhammad Ghufran (P.W.3) and Sepoy Ghulam Nabi (not produced).
14. When cross-examined this witness admitted that only 5/6 passengers were present in the flying coach at the relevant time, besides the cleaner and the driver. He also admitted that he had not prepared the site plan showing the seat where the appellant was seated in the Flying Coach. He further admitted:-- "I got it confirmed from the cleaner that the crate recovered by him belonged to the accused."
15. The learned counsel drew our attention to the fact that, in the circumstances, the seizing officer, Inspector Farman Said (P.W.2) was not only required but was also duty bound to have recorded the statement of the Cleaner in this respect. He submitted that this witness has categorically admitted as mentioned above, that he had neither recorded the statement of the said Cleaner nor had made him as one of the marginal witness to the recovery memo. The witness also failed to mention the name of the Cleaner/driver in the Murasila (Exh.P.A./1).
16. The learned counsel thus contended that the present case has become doubtful because one of the witness to the recovery memo. (Exh.P.B.) vide which the hand grenades were allegedly recovered, when examined as P.W.3 stated that the Flying Coach bearing No,SB-1245, which came from Mardan side, was stopped at about 12-30 p.m. During the course of the Nakabandi, that it was Constable Ghulam Nabi (not produced) who brought out the appellant from the said vehicle. He was found in possession of a crate of grapes (lying in a gunny bag), the search of which led to the recovery of as many as 10 hand grenades along with 10 fuses. According to him the appellant was then arrested, the articles were taken into possession vide recovery memo. (Exh.P.B.) and the report was scribed by Excise Inspector Farman Said (P.W.2) which was then sent to the police station for the registration of the case.
17. The learned counsel for the appellant submitted that in his cross-examination this witness has clearly contradicted the prosecution story as set up in the Murasila (Exh.P.A./1), F.I.R. (Exh.P.A.) and in the statement of Excise Inspector, Farman Said (P.W.2). The learned counsel drew our attention to the fact that this witness further stated that it was Constable Ghulam Nabi (not produced) who had brought out the appellant alongwith the crate, from the Flying Coach, that at that time the Excise Inspector, Farman Said (P.W.2) was standing near one of the Flying. Coaches and that it was there that the grenades in question were detected/recovered from the crate. The witness further stated that they had asked the Cleaner about the owner of the crate who then pointed out that the same belonged to the appellant, that thereafter the recovery memo. Was prepared.
18. This witness also admitted that he did not know the name of the said Cleaner.
19. Sub-Inspector Police Station "B" Division, Mardan Ghaffar Ali Khan was examined as P.W.4. He stated that during the days of occurrence he was posted as In charge Police Post Par Hoti. Mardan, attached to Police Station "B" Division, Mardan. According to him when the copy of the F.I.R. (Exh.P.A.) was handed over to him, for investigating the present case, he recorded the statements of the witnesses who belonged to the Excise and Taxation Department, Mardan and vide recovery memo.
(Exh.P.C.) took into his possession a letter, written in Pushto language, addressed to one Rehmatullah by one Hamesh Gul regarding the 10 hand grenades. He further stated that he then sent the hand grenades to the Armorer for obtaining his opinion (Exh.P.D.), that after obtaining the requisite sanction for the prosecution of the appellant from the concerned District Magistrate, Mardan and after completing the investigation, in all respects, the case file was handed over to S.H.O. Ain-udDin Khan (P.W.6) who submitted complete challan against the appellant.
20. When cross-examined this witness admitted that the letter, scribed in Pashto,' and recovered from the pocket of the appellant, was taken into possession vide recovery memo. (Exh.P.C.) but was not produced in the Court and exhibited in the prosecution evidence. He further stated that he did not remember as to what instructions were given in the said letter in respect of the hand grenades i,e,, whether the hand grenades should be disposed of, sold, or destroyed. He further admitted that he had not referred the appellant to any Medical Officer for obtaining his opinion as to whether or not the appellant, who had only one hand, was capable of lifting any weight. He admitted that since he had not arrested the appellant, therefore, he was not in a position to point out as la where the appellant was sitting, at the relevant time, and as to wherefrom the crate, containing the hand grenades, was recovered. He further admitted that it was a fact that he had not investigated the case on these lines. According to him none of the Excise Officials accompanied him to the spot/scene of occurrence in order to point out the place from where the recovery was made/effected.
21. From a close scrutiny/analysis of the evidence on record we have noticed an important fact which is that the scene of occurrence is situated on the main road. Excise Inspector Farman Said (P.W.2) had stopped the Flying Coach in question and had allegedly recovered the hand grenades from the possession of the appellant. He has categorically stated that it was the Cleaner of the Flying Coach who had informed him that the gunny bag, containing a crate having grapes and hand grenades, belonged to the appellant. It would, therefore, follow that Excise Inspector Farman Said (P.W.2) had not, in fact, recovered the gunny bag from the possession of the appellant because if he had recovered the said gunny bag from the possession of the appellant then in that case he was not obliged to ask the Cleaner as to whom the gunny bag belonged. To the same effect is the statement of Constable Muhammad Ghufran (P.W.3), the marginal witness of the recovery memo. Exh.P.B., who too admitted, in his cross-examination, that it was the Cleaner who had pointed out that the gunny bag belonged to the appellant. Not conceding but for the sake of arguments if the contentions of these two P.Ws. Are taken to be correct, that it was the Cleaner who had pointed out to them that the appellant was the owner of the gunny bag, then in that case it was not only necessary but was incumbent upon the Excise Inspector Farman Said (P.W.2) to have either made the Cleaner as one of the marginal witness to the recovery memo. Vide which the hand grenades were taken into possession, or to have at least recorded his statement in this respect. Neither of the two were done for reasons best known to the Excise Inspector Farman Said (P.W.2) alone. This fact alone has made the recovery of the hand grenades from the possession of the appellant highly doubtful. Needless to mention, as admitted by both the P.Ws., even the name/address of the said Cleaner was not noted.
22. The matter does not end here. During the course of the trial although the gunny bag was exhibited in evidence as Exh.P.1, the crate which allegedly contained the contraband items was not produced in evidence/exhibited. Similarly 10 hand grenades as well as 10 fuses were also not produced in the Court in the prosecution evidence. The Armorer, who had examined the hand grenades etc., was also not produced in the witness-box to stand the test of the cross-examination by the other side.
23. In the circumstances, we are of the considered view that a close scrutiny of the testimony of Excise Inspector Farman Said (P.W.2), Constable Muhammad Ghufran (P.W.3) and S.H.O. Ghaffar Ali Khan (P.W.4) draw us to the inevitable conclusion that the prosecution has miserably failed to prove its case, beyond reasonable doubt, against the appellant.
24... The case against the appellant, resultantly, fails on account of insufficient evidence. This appeal is, therefore, accepted and the conviction and sentence as recorded by the Special Judge, Mardan is set aside and the appellant is acquitted. He shall be set at liberty forthwith if not required in any other case.