2021 P Cr. L J 1729
[Balochistan (Sibi Bench)]
Before Nazeer Ahmed Langove and Rozi Khan Barrech, JJ
NOZO ---Appellant
Versus
The STATE--- Respondent
ATA Criminal Appeal No. (s) 105 of 2020, decided on 16th February, 2021.
(a) Anti -Terrorism Act (XXVII of 1997) ---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent
to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism ---Appreciation of evidence ---Benef it of doubt ---Delay of
eight hours in lodging the FIR ---Effect ---Improvised explosive device and other explosive
substances were recovered from the accused ---Record showed that the alleged occurrence
took place on 10.02.2020 at 2.00 a.m. and the FIR was lodged on the said date after a delay of eight hours without any explanation, despite the fact that the distance between the place of occurrence and the police station was only 30/36 kilometres ---No explanation, whatsoever,
had been tendered by the prosecuti on as to why the complainant waited for more than eight
hours for lodging the FIR and nominating the accused person--- Element of deliberation and
consultation could not be ruled out of consideration ---Circumstances established that the
prosecution had fail ed to prove its case against the accused without any shadow of doubt ---
Appeal against conviction was allowed, in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 154---First Information Report ---Prompt registration of FIR ---Object --- Main o bject of
prompt registration of the FIR is to rule out the possibility of deliberation and consultation and inquiry---Element of delay in lodging the crime report is treated with caution because there is a tendency to involve innocent people during the int erval.
(c) Anti -Terrorism Act (XXVII of 1997) ---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism ---Ap preciation of evidence--- Benefit of doubt ---Improvised
explosive device and other explosive substances were recovered from the accused ---Neither
Recovery memo was prepared on the spot nor recovered material was sealed at the spot rather the same was sealed after six hours of the occurrence, as such the prosecution case was
highly doubtful ---Lapse on the part of the police was clear and admitted ---Wisdom behind
sealing the weapon at the place of incident was to eliminate the possibility of manipulation of
evidence after the recovery of alleged material ---Other material aspect of the case was that
neither the complainant stated a single word in his report about weighing of the explosive substance nor that fact was mentioned in the recovery memo that how much e xplosive was
recovered from the accused ---None of the witnesses stated a single word as to how much
explosive substance was recovered from the accused ---Record transpired that four grams of
explosive were separated for analysis ---Said aspect of the matter also caused reasonable
doubt in the prosecution case --- Circumstances established that the prosecution had failed to
prove its case against the accused without any shadow of doubt ---Appeal against conviction
was allowed, in circumstances.
Rahim Bakhsh v. The State 2010 PCr.LJ 642 rel.
(d) Anti -Terrorism Act (XXVII of 1997) ---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5---Keeping explosive with intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism ---Appreciation of evidence--- Benefit of doubt ---Delay in
sending samples of explosive substance for analysis ---Effect ---Improvised explosive device
and other explosive substances were recovered from the accused ---Alleged recovery was
effected on 10.02.2020 while the sample was received by the Forensic Science Agency with
a delay of eighteen days, for which no explanation was offered by the prosecution's witnesses---Delay in transmission of sample to the Forensic Science Agency created se rious
doubts about safe custody of the alleged recovered explosive substance and its safe transmission to the Forensic Science Agency ---Alleged Recovered substance was delivered
to the Forensic Science Agency by one Police Official/ASI, however, the said P olice
Official/ASI was not produced as a prosecution witness at the trial about the receipt of case property, its safe custody and safe transmission to the Forensic Science Agency--- Custody of
the recovered explosive substances at the police station had no t been established by the
prosecution during the trial ---Moharir of the police station had not been produced by the
prosecution to establish the receipt of the case property to the office of examiner ---
Circumstances established that the prosecution had fai led to prove its case against the
accused without any shadow of doubt ---Appeal against conviction was allowed, in
circumstances.
(e) Anti -Terrorism Act (XXVII of 1997) ---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4, 5 & 7--- Keeping explosive with
intent to endanger life or property, making or possessing explosives under suspicious circumstances, act of terrorism ---Appreciation of evidence ---Benefit of doubt ---Re striction
on trial of offences ---Failure to get permission from the competent authority for prosecution-
--Effect ---Scope ---Improvised explosive device and other explosive substances were
recovered from the accused ---Accused was charged under S. 5 of the Ex plosive Substances
Act, 1908, but according to S. 7 of the said Act, prior permission for prosecution of the competent authority was required--- Sanction for prosecution for holding trial under
Explosive Substances Act was mandatory and a condition precedent for prosecution under S.
5 of the said Act ---In the absence of the requisite sanction/permission, entire proceedings
would be void and without jurisdiction---Word "shall" used in S. 7 of Explosive Substances
Act, 1908, left no room for any departure ther efrom ---Although, S. 19(8- B), Anti -Terrorism
Act, 1997, made a relaxation to the effect that if a sanction was applied but not granted by the competent authority within 30 days then the due proceedings towards initiation of the
trial might be carried on ---Admittedly, no such request had been made and as such under S. 7
of Explosive Substances Act, 1908, as well as S. 19(8- B) of Anti -Terrorism Act, 1997,
prosecution and trial was not competent ---Circumstances established that the prosecution had
failed to pr ove its case against the accused without any shadow of doubt ---Appeal against
conviction was allowed, in circumstances.
(f) Criminal trial ---
----Benefit of doubt ---Principle ---If evidence created doubt about the truthfulness of
prosecution story, its benefit had to be given to the accused without any reservation and there
was no alternative but to acquit the accused by giving him benefit of the doubt.
Ali Hassan Bugti for Appellant (absent).
Jameel Akhtar Gajani, A.P.G. for the State.
Date of hearing: 7th January, 2021.
JUDGMENT
ROZI KHAN BARRECH, J .---The appellant Nozo son of Raja Khan having been
involved in FIR No. 03 of 2020 dated 10.02.2020 registered under sections 4 and 5 of the Explosive Substances Act, 1908 (the "Explosives Act") read with se ction 7 of the Anti -
Terrorism Act, 1997 ("ATA") with PS Counter Terrorism Department Naseerabad Division was tried by learned Special Judge Anti -Terrorism Court Dera Allah Yar ("trial court") and
on completion thereof by means of the judgment dated 10th November 2020 ("impugned judgment") he was convicted and sentenced as follows:
"21.... accused namely, Nozo son of Raja Khan, by caste Bugti is convicted under section 7(fff) of ATA 1997, read with sections 4- 5, Explosive Substances Act, 1908,
and sentenced to Suffer Fourteen (14) Years Rigorous Imprisonment. The benefit of
section 382- B, Cr.P.C. is also extended in favour of accused... "
2. As per prosecution story as disclosed in complaint Ex.P/1- A recorded on the
statement of PW -1 Subedar Muhammad Aslam (complainant) is that on the night of
10.02.2020 he along with other Frontier Corps (FC) officials were present at Samad Check-post. Meanwhile, at 2:00 a.m. they saw four persons, whom they loudly asked to stop, but the aforesaid persons started to r un away. The FC officials chased them and apprehended one of
them who disclosed his name as Nozo son of Raja Khan, while his other companions succeeded to make their escape good. On search, from the possession of the accused, Nozo an Improvised Explosive D evice (IED) and other explosive substance were recovered.
Hence, the crime report.
After completion of the investigation, the challan was submitted before the trial court.
The appellant was charge- sheeted to which he pleaded not guilty and claimed trial. In order
to prove its case, the prosecution examined three witnesses in all. After the closure of the
prosecution side, the accused/appellant was examined under section 342, Cr.P.C. wherein he once again denied the allegations levelled against him and prof essed innocence. However,
the appellant opted not to record his statement on oath as envisaged under section 340(2),
Cr.P.C. nor produced any witness in his defense. The trial court after conclusion of the trial
found the appellant guilty of the charge and while recording his conviction sentenced him as
mentioned above. Hence, the instant appeal.
3. Since on the last date of hearing, i.e. 07.01.2021 despite repeated calls the learned
counsel for the appellant was not in attendance, therefore, we were left w ith no other option
but decided to adjudicate upon the matter on the basis of the material available on record. We have heard the arguments of the learned APG and perused the entire record with his able assistance.
4. The alleged occurrence took place on 1 0.02.2020 at 2:00 a.m., and the FIR was
lodged on the said date on 10:20 a.m. after a delay of eight hours without any explanation, despite the fact that the distance between the place of occurrence and the said police station is only 30/36 kilometers. No explanation whatsoever has been tendered by the prosecution as to why the complainant weighted for more than eight hours for lodging the FIR and nominating the accused person. Hence, under such circumstances, the element of deliberation and consultation ca nnot be ruled out of consideration. A question also arises here that if the
complainant apprehended the accused at the spot then why he did not lodge the FIR promptly. The main object of prompt registration of the FIR is to rule out the possibility of deliberation and consultation and inquiry. The element of delay in lodging the crime report is
treated with caution because there is a tendency to involve innocent people during the interval.
5. According to the prosecution story set forth in the FIR that on 1 0.02.2020, the
complainant Subedar Muhammad Aslam along with other FC officials were present at Samad Check Post. Meanwhile at 2:00 am they saw four persons present near the post, whom they loudly asked to stop, but they started to run away. The FC officia ls chased them, and one of
them was apprehended who disclosed his name as Nozo son of Raja Khan while his companions succeeded in making their escape good. On search of the accused, one IED along with explosive substances were recovered. It is also alleged in the report of the
complainant that the accused attempted to explode the IED near the FC check -post.
6. On the other hand it is an admitted fact that no detonator, wires or remote controls
were recovered from the possession of the appellant and during t he course of investigation
nothing came on record that the accused belong to any proscribed organization. For the sake of argument if it is presumed that the accused was apprehended at midnight near the FC check -post and three other persons succeeded to ru n away, how can it be possible that a
person who intended to explore the explosive substance near the FC check- post was without
any weapons and would wait for the FC officials to come and apprehend him which does not appeal to the prudent mind. There is no house or building situated nearby the area where
from the accused/appellant was apprehended. It has also come on record that the village
nearest to the place of occurrence is at a distance of two kilometers. The story narrated by the complainant in the FI R shows that the occurrence did not take place in the manner narrated
hereinabove.
7. The prosecution witnesses also stated in their statement that they apprehended the
accused and brought him to the FC check- post and on the next day they handed over the
accused to the police officials. It has come on record that neither the alleged recovered
material was sealed on the spot nor any recovery memo was prepared. The investigation officer stated in his statement that on 10.02.2020 the complainant Naib Subedar M uhammad
Aslam came to the police station and lodged the FIR (Ex.P/3- A) and after registration of the
FIR he went to the place of occurrence and there the accused was handed over to him. He further stated in his statement that he took the IED into possession through recovery memo and separated four grams of explosive substance there -from and prepared parcel No.1 and
rest of the IED was sealed in parcel No.2, meaning thereby that after registration of the FIR the recovery memo and sealed parcels were prepared . In the case of Arif Khan 1998 PCr.LJ
1287 it was observed by the Division Bench of Hon'ble Sindh High Court that if the recovery memo did not show that the weapons were sealed at the spot, the case becomes doubtful. In
another case titled as Rahim Bakhsh v The State (2010 PCr.LJ 642 Quetta) it was observed
as under:
"7 .......It is well -settled proposition of law that conviction under section 13- D of
Arms Ordinance could not be mail twined unless the weapons allegedly recovered
were sealed at the spot an d the opinion of Forensic/Ballistic Expert is produced on
record to prove that the weapons so recovered were, in fact, functional..."
8. In the case in hand neither the recovery memo was prepared on the spot, nor the
recovered material was sealed at the sp ot rather the same was sealed after six hours of the
occurrence, as such, the prosecution case is highly doubtful. A lapse on the part of the police is clear and admitted. The wisdom behind sealing the weapon at the place of incident is to eliminate the po ssibility of manipulation of evidence after the recovery of alleged material.
In order to avoid the possibility of manipulation, the Apex court has always insisted that the property should be sealed at the place, of occurrence so as to discard the possibil ity of
manipulation or tampering of the prosecution evidence. Unfortunately, this exercise has not been complied with in this case, nor any reasons have been assigned for such omission. The prosecution should satisfy the court about such omission.
9. The o ther material aspect of the case is that neither the complainant stated a single
word in his report about weighing of the explosive substance nor this fact was mentioned in the recovery memo that how much explosive was recovered from the appellant. Even otherwise none of the witnesses stated a single word as to how much explosive substance
was recovered from the appellant. It has only come on record that four grams of explosive were separated for analysis. This aspect of the matter also causes reasonable do ubt in the
prosecution case.
10. It is, however, observed that the conviction of the appellant could not be maintained
unless the prosecution also proves that IED contained an explosive substance which could
cause it to explode. For this, it must produce a forensic report whose credibility depends on
safe custody of the device, extraction of samples of explosive - substance there- from and safe
transmission thereof to the laboratory. In this regard, we have also observed that in the
Punjab Forensic Sciences A gency (PFSA) report (Ex.P/3- A) the alleged recovery was
effected on 10.02.2020 while the sample was received by the PFSA on 27.02.2020 with a
delay of eighteen days, for which no explanation was offered by the prosecution's witnesses.
The delay in transmis sion of sample to the PFSA, created serious doubts about safe custody
of the alleged recovered explosive substance and its safe transmission to the PFSA, as such,
in the instant case, the concept of safe custody of the case property had completed been shattered, when the safe custody of parcel of the sample from point/date of recovery, till its
receipt in PFSA Lahore was not established to have complied with according to the mandate of law. Similarly, the safe custody of case property from recovery to its production in the court was also not proved. In the instant case also, the sample of the alleged recovered substance was delivered to the PFSA by one Azhar Ali (ASI), the said Azhar Ali was not produced as a prosecution witness at the trial about the receipt of case property, its safe custody and safe transmission to the PFSA. The record of the case further shows that safe custody of the recovered explosive substances at the police station had not been established by the prosecution during the trial. The Moharir of the police station had not been produced by the prosecution to establish the receipt of the case property to the office of examiner has not been established. While as stated above the fact of not separating the samples from the recovered material i s also a question mark on the credibility of the prosecution case. As the
result, the chain of custody breaks and forensic report loses credibility.
11 The offence under section 5 of the Explosive Substances Act, 1908 was charged
against the appellants, bu t according to section 7 of the said Act, prior permission for
prosecution by the competent authority was required. The above mentioned provision reads as under: --
"7. Restriction on trial of offences. No Court shall proceed to the trial of any person for an offence against this Act except with the consent of * * * the [Provincial Government] [to which intimation shall be sent within two days of the registration of the case:]
[Provided that if the consent is neither received nor refused within s ixty days of the
registration of case the Government such consent shall be deemed to have been duly given.]"
12. It is crystal clear from the bare reading of the above -mentioned provision of law that
sanction for prosecution for holding trial under Explosi ve Substances Act is mandatory and a
condition precedent for prosecution under section 5 of the said Act. In the absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction. The word "shall" used in above m entioned section leaves no room for any
departure there -from. Although, section 19(8 -B) of Anti -Terrorism Act, 1997 makes a
relaxation to the effect that if a sanction is applied but not granted by the competent authority within 30 -days, then the due proce edings towards initiation of the trial may be carried on.
For ready reference the said provision is reproduced hereinbelow: --
19. Procedure and Powers of [Anti Terrorism Court].
[(1) .............
[(1-A) .............
(2) .............
(3) .............
[(4) .............
(5) .............
(6) .............
[(7) ............
(8) ............
[(8-A) ............
(8-B) Notwithstanding anything contained in section 7 of the Explosive Substances
Act, 1908 (VI of 1908), or any other law for the time being in force, if the consent or
sanction of the appropriate authority, where required, is not received within thirty days of the submission of challan in the Court, the same shall be deemed to have been given or accorded and the Court shall pr oceed with the trial of the case.]".
13. From the above mentioned provision, one thing is clear that the request for
prosecution should have been made. When there is mention of receipt of consent or sanction within thirty days, it impliedly indicates sending and seeking consent/sanction. Admittedly, in the instant case no such request has been made and as such under section 7 of the Explosive Substances Act, 1908, as well as section 19(8- B) of Anti -Terrorism Act, 1997,
prosecution and trial was not competen t and possible.
14. In view of the foregoing discussion, we have arrived at the irresistible conclusion that
the prosecution case is replete with major contradictions, infirmities and loopholes, coupled with the fact that no sanction for prosecution was sought by the investigating officer, which entirely vitiates the prosecution case, the benefit of which should have been extended to the appellants by the learned trial court and there is no cavil to the proposition that the responsibility to prove its case squarely rests upon the shoulders of the prosecution that has
not been discharged successfully in this case and it is also a settled law that benefit of each and every doubt is to be extended to the accused and that only a single reasonable doubt qua the g uilt of the accused is sufficient to acquit him of the charge. Moreover, it is established
law that where evidence creates doubt about the truthfulness of prosecution story, its benefit has to be given to the accused without any reservation and there is no alternative but to
acquit the appellant by giving him benefit of the doubt.
Thus, considering the material available on record in the light of the evidence and
overall circumstances of the case, the prosecution has not only failed to prove the above -
alleged recovery of explosive substance from the possession of the appellant, but also failed
to prove the case without any shadow of a doubt. Resultantly, the impugned judgment dated 10th November 2020 passed by learned Special Judge Anti -Terrorism Court Dera Allah Yar
in FIR No. 03 of 2020 dated 10.02.2020 registered under sections 4 and 5 of the Explosive
Substances Act, 1908 (the "Explosives Act") read with section 7 of the Anti -Terrorism Act,
1997 ("ATA") with PS Counter -Terrorism Department Naseerabad Div ision is set aside.
While extending the benefit of the doubt, the appellant, namely Nozo son of Raja Khan, is acquitted of the charge. He be set at liberty forthwith, if not required in any other case or
offence.
JK/69/Bal. Appeal allowed.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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