' Through this appeal Zahoor Ahmad son of Rajab Ali, appellant, has challenged his conviction and sentence under section 4 of the Explosive Substances Act, 1908, awarded to him by Mr. Riaz ul'
Hassan Alvi, Judge, Special Court, (Established under the Suppression of Terrorist Activities, Act, 1975), Multan, vide judgment dated 24.2.2001.
2. The appellant along with Sajid Tufail alias Abuzar alias Mohsin Khan, Muhammad Nawaz and Tariq Mahmood alias Ghulam Ullah was tried by the learned Judge, Special Court, Suppression of Terrorist Activities, Multan, for offences under section 13-B of the Pakistan Arms Ordinance, 1965 and under section 4 of the Explosive Substances Act, 1908.
3. After the trial, the co-accused of the appellant were acquitted of all the charges while the appellant was convicted under section 4 of the Explosive Substances Act, 1908 and sentenced rigorous imprisonment for seven years. However, the appellant was acquitted of the offence under section 13-B of the Pakistan Arms Ordinance, 1965. Benefit of section 382-B, Cr.P.C. Was also extended to the appellants.
4. The formal F.I.R. Bearing No,243 of 1997 Ex.h.PB/1 was registered at Police Station Sara-e-Sadhu, District Khanewal, by Fateh Sher, Muharrer/Head Constable, P.W.4, at 6-10 p.m. On 29-9-1997, for offences mentioned above.
5. The facts as given in Exh.P.B are that P.W.6, Muhammad Akram-Inspector was present in Mouza Hashmat Wali alongwith other police officials when the appellant, while he was under the police custody, informed him that he with the connivance of Sajid Tufail alias Abuzar alias Mohsin Khan, Muhammad Nawaz and Tariq Mehmood alias Ghulam Ullah had manufactured a time bomb and the time bomb along with other implements was hidden in a fertilizer bag in his house. After receipt of this information the appellant led to the recovery of fertilizer bag lying in the southern part of the residential house of the appellant. When the bag was opened a bomb P.1, two walki talki sets P.2/1.2, seven dry-batteries P.3/1.7 and a complete circuit P.4 were recovered by Muhammad Akram, Inspector P.W.6 and taken into possession vide memo Exh.P.1.A, which was also signed by Muhammad Akram, A.S.I , who appeared as P.W.2 and one Asif Iqbal, Constable, who was given up during trial.
6. After the completion of the investigation the accused were sent up for trial and as they denied the charge and claimed trial, the same was commenced. During trial, the prosecution produced seven P.Ws. To establish its case. Muhammad Akram, A.S.I P.W.2 furnished the evidence of recovery.
P.W.4 Fateh Stier, Head- Constable, stated about the registration of formal F.I.R. P.W.6 Muhammad Akram, Inspector/complainant of the case stated. About the recovery and investigation, while P.W.7 Muhammad Aslam, Section Leader Bomb Disposal Unit, Multan -submitted a copy of Exh.P.E. Rest c: the P.Ws. Are formal in nature and need not to be discussed.
7. After the conclusion of trial, the statements of the accused were recorded under section 342, Cr.P.C. Wherein they stated that they were involved in a false case and the police has roped them in this case as they were member of Sipah-e-Sahaba and the Police Inspector wanted to show this performance before the superiors. However, they did not appear as witness - as contemplated by sub section (2) of section 340 Cr.P.C. And also did not produce any defence evidence.
8. The learned counsel for the appellant has argued that no case is made out against the appellant and the recoveries shown against the appellant were in fact planted and fake.
9. On the other hand, the learned counsel appearing on behalf of the State has argued that the prosecution witnesses had no personal enmity with the appellant so as to involve him in a false case and it has been established that the appellant led to the recoveries.
10. I have heard the learned counsel for the parties and gone through the record of the case. It has been noticed that although the appellant was already under the custody of the police in a case F.I.R. No,240 of 1997 and there was no likelihood that the appellant would be able to destroy any evidence yet none from the public was associated with the recovery proceeding in violation of the provisions of section 103 Cr.P.0 Muhammad Akram, A.S.I/P.W.2 stated that respectable of the locality were summoned to witness the recovery but none joined. On the other hand, P.W.6 author of the F.I.R., Muhammad Akram, Inspector, on the same point stated that no person from the public came at the spot at the time of recovery and no person from the locality was summoned at that time.
There are also material discrepancies in the statements of P.W.2 and P.W.6 recovery. P.W.2 admitted in his cross- examination that the ladies were present inside the house at the time of recovery, while P.W.6 stated that at the time of raid no other inhabitant of the housed was present.
Admittedly, both the P.Ws. Have stated that the recovered articles were not sealed into a parcel at the spot. P.W.6 has also admitted that the case property was not sent by him to any expert for obtaining his opinion. Both the afore-referred witnesses have also admitted that no Explosive Substance Expert was taken along by them at the time of recovery. It is hard to believe that police officials would go without any expert who could defuse the bomb, if they were to effect recovery of a bomb. Not a single witness was produced to prove that the recovered-articles were taken by him to any expert to ascertain whether the recovered articles fell within the definition of Explosive Substance. Although P.W.7 Muhammad Aslam, Section Leader Bomb Disposal Unit, Multan, was produced before the Court to prove his report Exh.P.E. Yet a perusal of the said report shows that it relates to two F.I.Rs, bearing No,240 of 1997 and 243 of 1997 and it cannot be said whether the said report relates to F.I.R No,240/97 of 243 of 1997 (the instant case). Both the recovery witnesses are the police officials, who have not given any valid reason for non-associated the public witnesses during the recovery proceeding. P.W.6 had ample time to join the witnesses from public, as already discussed above. In the similar circumstances in the case of Muhammad Azam v. The State (P.L.D 1996 S.C. 67) the Honourable Supreme Court of Pakistan disbelieved the recoveries when satisfactory explanation was not given for violation of the provisions of section 103, Cr.P.C. P.W.6 is the author and investigator of the case and the only witness produced by the prosecution to corroborate the statement of P.W.6, is his subordinate Muhammad Akram, A.S.I who appeared as P.W.2. The prosecution case is replete with doubts and the P.Ws. Have contradicted each other on almost all the material points.
11. For what has been discussed above, I am of the considered view, that the prosecution has miserably failed to prove its case beyond doubt against the appellant, therefore, I allow this appeal and set aside the conviction and sentence awarded to the appellant by the learned trial Court vide judgment dated 24-2-2001. The appellant is acquitted of all the charges. He would be released from Jail forthwith, if not required in any other case.