2011 P Cr. L J 1889
[Quetta]
Before Naeem Akhtar Afghan and Muhammad Noor Meskanzai, JJ
RAHIM KHAN and another ---Appellants
Versus
THE STATE ---Respondent
Criminal Appeal No. 208 of 2010, decided on 18th July, 2011.
(a) Explosive Su bstances Act (XI of 1908) ---
----Ss. 4 & 5 ---Anti-Terrorism Act (XXVII of 1997), Ss.7 & 27 -A---Possessing explosive
substances and act of terrorism ---Appreciation of evidence ---Occurrence had taken place at
2.25 a.m. (night) and it was not possible to as sociate a private witness in such like cases at
the odd hours of night ---Record had shown that efforts were made to associate private
witnesses, but no body was available ---Defence had failed to bring any material on record to
show or allege the malice or motive against the police witnesses for false implication of
accused persons ---No adverse inference, in circumstances, could be drawn against the
prosecution for not associating private persons as witnesses ---Police Officials were
competent witnesses and c ould be credited with veracity, unless they were demonstrated to
be false witnesses having maliciously accused an innocent person of the commission of an
offence for ulterior motives ---Contentions of counsel for accused persons regarding non -
compliance of S.103, Cr.P.C., had no force ---Record had revealed that prosecution witness
who was member of Investigating team, had tendered the report/expert opinion given by
Crises Management Officer; and same was never objected to by the defence counsel at the
time o f its exhibition ---Objection raised by accused persons with regard to admissibility of
the Expert report, was of no avail in circumstances ---Recovery of explosives from the
house/rooms in exclusive possession of accused, had been established ---Nothing had been
brought on record by accused persons to show or demonstrate that the prosecution witnesses
had any malice, grudge or ill -will against accused persons to falsely implicate them ---Nature
of the recovered articles being explosives had been prov ed at the trial ---Defence plea was not
consistent and in support of their defence plea, they had failed to bring any material on
record ---Prosecution had proved the recovery of explosives in huge quantity from the
possession of accused persons; who failed to account for the same ---In view of the
presumption attached under S.27 -A of Anti -Terrorism Act, 1997, case against accused
persons stood proved ---Trial Court had already taken lenient view with regard to quantum of
sentence ---Conviction and sentence awar ded to accused by the Trial Court, was maintained,
in circumstances.
Muhammad Arif v. The State 2004 SCJ 137; Suriya Bibi v. State 2008 SCMR 825
and Afzal Ahmed v. The State 2003 SCMR 573 rel.
(b) Criminal Procedure Code (V of 1898) ---
----S. 103 ---Making a search ---Purpose ---Main object of S.103, Cr.P.C. was to ensure the
effecting of recovery honestly and fairly and to exclude any possibility of concoction and
transgression ---Section 103, Cr.P.C. was not meant to disbelieve the statement o f official
witness in any other circumstance ---Police Officials were competent witnesses of recovery
memo and their statements could not be discarded merely because they belonged to Police
department.
Sohail Ahmed Rajput for Appellants.
Sardar Ahmed Hal eemi, Special Prosecutor, ATF for the State.
Date of hearing: 21st June, 2011.
JUDGMENT
NAEEM AKHTAR AFGHAN, J. ---This appeal is directed against the judgment
dated 30 -7-2010 passed by learned Special Judge Anti -Terrorism Court -I Quetta in Special
Case No.62 of 2009, whereby the appellants have been awarded conviction as follows: --
"Thus they are convicted and sentence under sections 4, 5, Explosive Substances Act
1908, 109, 34, P.P.C. read with section 7, ATA 1997 to suffer' R.I. for eight years,
each , benefit of section 382(b), Cr.P.C. is extended in their favour."
Brief facts of the prosecution case are that vide F.I.R. No.130 of 2009 report was
lodged with Police Station New Sariab Quetta reporting therein that an accused namely
Terati Khan arreste d in F.I.R. No.125 of 2009 under sections 4, 5 of Explosive Substances
Act read with section 7 of ATA read with section 109, P.P.C. disclosed about the
involvement of the appellants in explosions and presently they are in possession of hand
grenades, explo sives and other articles used for explosion in a house near eastern bye -
pass and on his pointation on 4 -9-2009 a house in Killi Shahwani eastern bye -pass was
raided at about 2 -30 a.m. (Night). Inside the house in a room towards western side, appella nt
No.1 Rahim Khan was sleeping and near his mattress 49 hand -grenade were recovered and
from the other room in occupation of appellant No.2 Karim Khan a white bag was lying,
which was opened, wherefrom 40 Kgs of explosive material was recovered in the sha pe of
different packets. On further checking, from a plastic bag different apparatus/article, remote
control system, mobile phone charger etc. were also recovered. The bomb disposal squad was
called, who defused the hand -grenades, all the articles recovere d were sealed, into parcels
and case under sections 4, 5 of Explosives Act read with 7 of ATA was registered.
During investigation it is alleged that the appellant No.1 made disclosure, in
pursuance whereof a disclosure memo was prepared on 16 -9-2009 and acquitted accused
Badal Bugti, Muhammad Azeem and Habib Ullah were also arrested. After availing
expert/technical opinion from Crises Management Officer Civil Defence Balochistan and
compliction of investigation challan was submitted before the court of l earned Special Judge
ATC -I Quetta against the appellants as well as acquitted accused Badal Bugti, Muhammad
Azeem and Habib Ullah.
At the trial charge was denied, whereafter the prosecution produced four witnesses
and the appellants were examined under section 342, Cr.P.C., the appellants did not
record their statements on oath nor produced any witness in defence. After conclusion of the
trial the learned trial Court while disbelieving and discarding the disclosure memo of
appellant No.1 acquitted co-accused Badal Bugti, Muhammad Azeem and Habib Ullah, but
on the basis of recoveries of the explosives convicted the appellants as mentioned above.
Mr. Sohail Ahmed Rajpoot, learned counsel for appellants argued that the recovery of
explosives has not b een proved by the prosecution through independent and reliable
witnesses, same is violative of section 103, Cr.P.C. the Investigating Officer has not been
produced at the trial and the opinion of the expert is not admissible as same is not notified
and the same is violative of section 510, Cr.P.C. The learned counsel further argued that the
burden of proof was lying on the prosecution and the prosecution has miserably failed to
discharge the burden. He further stressed that the defence plea has not been pro perly
appreciated by the learned trial Court. The learned counsel also drew our attention to column
No.7 of the challan No.90 of 2009 dated 30 -9-2009 Exh.P/4 -D, wherein it has been
mentioned that the appellant Rahim Khan arrested in F.I.R. No.125 of 2009 m ade disclosure.
The learned counsel tried to demonstrate that the appellants were already in custody prior to
the date of raid i.e. 4 -9-2009.
On the other hand Mr. Sardar Ahmed Haleemi, learned Special Prosecutor ATA
argued that the prosecution has proved the recoveries of the explosives from the possession
of the appellants beyond any shadow of doubt. He further argued that police witnesses are as
good as private witnesses and the police witnesses had no enmity or ill -will for false
implication of the app ellants. The learned State Counsel further argued that the report of the
expert was never challenged at the trial and the Commanders/Officers of the Bomb Disposal
Squad of the Civil Defence Balochistan are authorized by the Home and Tribal Affairs
Departme nt, Government of Balochistan, to give expert opinion vide SOP (Standing
Operating Procedure) issued in the year 1989. He further argued that the appellants at the
trial failed to show the possession of the explosives for lawful object and according to
section 27 -A of ATA it shall be presumed, unless contrary is proved, that the explosive
substance was for the purpose of terrorism.
After hearing learned counsel for parties we have perused the record minutely.
Perusal of record reveals that F.I.R. No.125 o f 2009 was lodged at Police Thana New
Sariab Quetta on 1 -9-2009 against accused Terati Khan and Haji Sher Muhammad with
regard to recoveries of explosives from their possession and on the basis of disclosure of
Terati Khan dated 3 -9-2009 raid was conducted at about 2 -30 a.m. (Night) in the house of
appellants on the pointation of accused Terati Khan, resulting into recovery of hand
grenades, explosives and other material used for explosion, in pursuance whereof F.I.R.
No.30 of 2009 dated 4 -9-2009 was regist ered at Police Station New Sariab Quetta against the
appellants. It is pertinent to mention here that on the basis of disclosure of accused Terati
Khan both the appellants were also challaned under section 109, Cr.P.C. in F.I.R. No.125 of
2009, but have be en acquitted in that case by court of Special Judge ATC -I Quetta vide
judgment dated 30 -7-2010.
In the instant case the witnesses of the recovery of explosives are Abdul Khaliq IP
and Sikandar Hayat, A.S. -I., out of whom IP/S.H.O. Abdul Khaliq appeared be fore the trial
Court as P.W.2, whereas Sikandar Hayyat A.S. -I. was dropped. P.W.2 in his cross -
examination stated as follows: --
The time of occurrence/raid is very important in this case, which is 2.25 a.m. (Night)
and it is not possible to associate a pr ivate witness in such like cases in the odd hours of
night. It has come on record that efforts were made to associate private witnesses, but
nobody was available. The defence throughout has failed to bring any material on record to
show or alleged the mali ce or motive against the police witnesses for false implication of the
appellants. The main object of section 103, Cr.P.C. is to ensure the effecting of recovery
honestly and fairly and to exclude any possibility of concoction and transgression, but
sectio n 103, Cr.P.C. never meant to disbelieve the statement of official witness in any other
circumstance. The police officials are competent witnesses of recovery memo and their
statements cannot be discarded merely because they belong to police department. Th e
evidence reflects that I.O. attempted to procure the attendance of members of the public of
the locality, but could not find the same and in this regard we have to keep in mind the time
of raid, which is midnight and in these circumstances it was not pos sible to have two Mashirs
from the public, hence in such circumstance no adverse inference can be drawn against the
prosecution for not associating private persons as witnesses. It has been held time and again
by the courts of law that members of police of ficers are competent witness in the eyes of law
and can be credited with veracity unless they are demonstrated to be false witness having
maliciously accused an innocent person of the commission of an offence for ulterior motives.
Reliance in this regard i s placed on the cases of Muhammad Arif v. The State , 2004 S.C.J.
137, Suriya Bibi v. State , 2008 SCMR 825 and Afzal Ahmed v. The State , 2003 SCMR 573.
In view of above, the arguments of the learned counsel for appellants regarding non -
compliance of sectio n 103, Cr.P.C. has no force.
Record further reveals that P.W.4 Chaudhary Akhtar, SI, who was the member of
Investigating Team tendered the report/expert opinion Exh.P/4 -C given by Muhammad Gul,
Crises Management Officer Civil Defence Balochistan and the s ame was never objected by
the defence counsel at the time of its exhibition through P.W.4. The defence did not move
any application before the learned trial Court to summon the expert of Civil Defence
Balochistan in the witness box for cross -examination. T he State Counsel referred to the
Standing Operating Procedure (SOP) handling of emergency situation in case of disaster/
bomb blast and search incidents issued by Home and Tribal Affairs Department Government
of Balochistan, whereby the Commanders of Bomb Disposal Squad of the Civil Defence
Balochistan are authorized to give expert opinion. Moreso ver, in view of section 510, Cr.P.C.
such report can be used as evidence in a trial without calling said expert as a witness
particularly when the defence never o bjected upon the same, hence in such circumstances the
arguments raised by the appellants with regard to admissibility of the expert opinion is of no
avail.
Perusal of record further reveals that this case was investigated by a team of officers
including P.W.4 Chaudhary Akhtar, S. -I. as member and I.O./IP Muhammad Ashraf as
Incharge of the Investigating Team. During trial the Incharge of the Investigating Team i.e.
Muhammad Ashraf Inspector had an attack of paralysis and had gone to his native village
Punj ab for treatment and according to P.W.4 there was no possibility of his coming back in
the near future, hence in these circumstances being member of the Investigating Team P.W.4
duly appeared and produced all the relevant documents including site map, reco very memo,
disclosure memo of appellant No.1 (discarded by the trial Court), the expert opinion as well
as copy of challan prepared by IP/SHO Mohibullah Kakar, who by that time had gone abroad
as a member of United Nation's Mission having no probability of coming back in the near
future, hence in such circumstances the non -appearance of the I.O. at the trial has caused no
prejudice to the appellants as P.W.4 was also a member of Investigating Team and
throughout remained associated with the investigation of the case and same was cross -
examined at length in all aspects, hence the arguments of the learned counsel for the
appellant that non -appearance of I.O. has caused prejudice to the appellants has no force in
the peculiar circumstances of the instant case.
In the instant case the recovery of explosives from the house/rooms in exclusive
possession of the appellant has been established. The association of private
witnesses/Mashirs of recovery despite efforts were not possible due to odd hours of the night.
Nothing has been brought on record by the appellants to show or demonstrate that the
prosecution witnesses had any malice, grudge or ill -will against the appellants to falsely
implicate the same. The nature of the recovered articles being explosives has been proved at
the trial. At the trial defence plea was raised that the appellants were abducted by the agency
persons prior to the registration of the F.I.R. and fake recoveries have been foisted upon the
appellants. However, during cross -examination of P.W.4 another plea was taken by the
appellants that they were under arrest and involved in other cases, while recording statement
under section 342, Cr.P.C. the appellant No.1 replying question No.12 stated that he is
innocent and was arrested by agencies on 1 -4-2009 along with his brother Karim Khan while
coming on a road when he reached from Dera Bugti and appellant No.2 while replying
question No.13 in his statement under section 342, Cr.P.C. stated that he is innocent and has
been involved with mala fide bei ng a Bugti, arrested by agencies. P.W.2 has not supported
the version of P.W.1 with regard to his coming to Quetta from Dera Bugti. The defence plea
was not consistent and in support of their defence plea the appellants have failed to bring any
material on record, the appellants neither produced any witness in defence nor even recorded
their statements on oath. The appellants took the specific plea, hence onus was upon the
appellants to produce evidence and prove their innocence or to support their plea by
attending circumstances. The appellants failed to prove their defence plea. The record further
reveals that the appellants were arrested in the instant case on 4 -9-2009 at the time of raid
and previously they were never arrested in any other case. On the b asis of disclosure memo
of Terati Khan dated 3 -9-2009 in F.I.R. No.125 of 2009 the appellants were subsequently
challaned under section 109, Cr.P.C. in F.I.R. No.125 of 2009 on 25 -9-2009. There is
nothing on record to prove or show that the appellants remained in custody of police prior to
4-9-2009 in F.I.R. No.125 of 2009. Careful perusal of the copy of Challan No.90 of 2009
Exh.P/4 -D as well as original of the same reveal that same bears erasing and over writing in
Column No.7 with regard to the name of accused and it appears that the name of accused
Terati Khan son of Bakhshia Mari has been omitted, erased and name of appellant Rahim
Khan son of Dost Muhammad has been mentioned, which is highly unwarranted and uncalled
far, as the narration of the ch allan due to such erasing and over writing demonstrates that the
appellant No.1 being in custody in F.I.R. No.125 of 2009 made disclosure leading to the
recoveries of explosives of the instant case, whereas factually it was accused Terati
Khan, who was arrested in F.I.R. No.125 of 2009, who made disclosure on 3 -9-2009
leading to the recovery of the explosives of instant of case in F.I.R. No.130 of 2009. For
these erasing/over writings in the challan, the challaning officer/IP Mohibullah, the then
SHO New -Sariab is responsible along with P.W.4 Chaudhary Akhtar who at the trial instead
clarifying the error, stated as follows in cross -examination contrary to the record: --
The member of the Investigating Team P.W.4 Chaudhary Akhtar S. -I. (at that time
appointed in Police Line Quetta) had badly tried to misguide the court and oblige the
appellants contrary to the record. The perusal of Zimnis of F.I.R. No.125 of 2009 by this
court (in chambers) reveal that on 24 -9-2009 the appellants were show n arrested in F.I.R.
No.125 of 2009, on the basis of disclosure of accused Terati Khan and were shown
transmitted to judicial custody on 25 -9-2009. The police has never shown arrested the
appellants in any record prior to 4 -9-2009 except arrested in F.I.R. No. 130 of 2009 on 4 -
9-2009 at the time of raid of the house in their occupation. Hence no benefit of
erasing/over writing in the challan can be extended to the appellants. However, strict action
is required to be taken in this regard against the officers concerned i.e., P.W.4 Chaudhary
Akhtar S. -I., Incharge of the Investigating Team Muhammad Ashraf IP/IO as well as
Challaning Officer Mohibullah Kakar IP/S.H.O.
Even otherwise section 27A, Cr.P.C. attaches presumption of proof against the
accu sed. For ready reference section 27A of ATA is reproduced below: --
"27A Presumption of proof against accused. ---(1) Any person having in possession,
without lawful excuse, any explosive substance with or without explosive devices
without justification or having been concerned with such explosive substance and
devices, shall be presumed, unless contrary is proved, that the explosive substance
was for the purpose of terrorism."
Moresoover, under section 5 of the Explosive Substances Act 1908 the fact of
possession of the explosives by the appellants as well as circumstances raising reasonable
suspicion required by section 5 of Explosive Substances Act stand duly proved.
The learned trial Court has already taken lenient view with regard to quantum of
sentenc e. For the above reasons it is concluded that the prosecution has proved the recovery
of explosives in huge quantity from the possession of the appellants and the appellants have
failed to account for the same and in view of the presumption attached under section 27A of
the ATA 1997 the case against the appellants stand proved. The appeal having no force is
dismissed and the conviction awarded to the appellants is maintained.
Copy of this judgment along with copy of F.I.R. No.130 of 2009, Challan No.90 of
2009 dated 30 -9-2009 and statement of P.W.4 Chaudhary Akhtar S. -I. be sent to worthy
Inspector -General of Police Balochistan for taking necessary action/initiate proceedings
agaisnt Chaudhary Akhtar S. -I., Muhammad Ashraf, IP/Incharge Investigating Team an d
IP/S.H.O. Mohibullah Kakar, Challaning Officer and to issue necessary instructions not to
appoint these officers for investigation of any criminal case in future. The compliance in this
regard be intimated through Registrar of this court.
H.B.T./66/Q Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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