2012 P Cr. L J 392 [Balochistan]
Before Muhammad Hashim Khan Kakar, J
AMANULLAH and 2 others ---Appellants
Versus
THE STATE---Respondent
Criminal Appeal No. 43 of 2011, decided on 30th August, 2011. Explosive Substances Act (XI of 1908 )---
----Ss. 4 & 5---West Pakistan Arms Ordinance (XX of 1965), S.13(d) ---Appreciation of
evidence ---Benefit of doubt ---Explosive material, arms and ammunition were allegedly
recovered from the accused, for which they could not produce any licence ---Pros ecution
evidence had many contradictions and discrepancies --- Recovery witnesses had contradicted
each other on material aspects of the case---No site plan of the place of occurrence had been prepared by the police ---Whole prosecution story was based on mala fides and dishonest
intention ---Expert opinion about the recovered material was not proved to have been given by
the experts appointed by the Provincial or Federal Government, as required by S.510, Cr.P.C.---
No Bomb Disposal Technician or Crises Mana gement Officer had been examined by the
prosecution to prove the authenticity and legality of the said certificate ---Prosecution had
not only failed to prove the alleged incriminating recoveries from the accused, but had also failed to prove its c ase beyond any shadow of doubt ---Accused were acquitted in circumstances.
Nouroz Khan Mengal for Appellants.
Abdul Ghias Nousherwani, P.- G. for the State.
Date of hearing: 30th August, 2011. JUDGMENT
MUHAMMAD HASHIM KHAN KAKAR, J. ---This appeal is directed against the judgment
dated 15th July, 2011, passed by the Additional Sessions Judge -III, Quetta, whereby appellants
Amanullah, Attaullah and Hidayatullah were convicted and sentenced under sections 4 and 5 of the Explos ive Substances Act, 1908 to suffer seven (7) years' R.I. Appellants Attaullah
and Hidayatullah were further convicted and sentenced under section 13(d) of the Pakistan Arms Ordinance, 1965 to suffer two years' R.I. Both the sentences were ordered to be r un concurrently,
but without extending benefit of section 382- B of the Cr.P.C.
2. The relevant facts, arising out of instant appeal, are that on 10- 8-2009, a case vide
F.I.R. No.113 of 2009 (Exh.P/3- A), under sections 4 and 5 of the Explosive Substances Act,
1908, section 13(d) of the Pakistan Arms Ordinance, 1965 and section 7 of the Anti -Terrorism
Act, 1997 was registered at Police Station New Sariab, Quetta on the Fard -e-Bayan Exh.P/1- A of
complainant Major Mudassir Ahmed, Ghaza Band Scouts Ba leli, Quetta. It was alleged by the
complainant that on above date, he, along with other FC personnel, raised blockade at Bhoosa
Mandi Eastern Bypass, when at about 12- 15 a.m., a vehicle Corolla bearing Registration
No.AAE -432, coming from Quetta city towa rds Ganj Peeri, was signalled to stop for checking,
but the driver accelerated the vehicle and ran towards Eastern Bypass Lango Abad and stopped
at the main gate of a house in a street, which was chased. It was further alleged by the complainant that the d river, along with his two companions, was apprehended, who disclosed
their names Amanullah, Attaullah and Hidayatullah respectively. On search, explosive material, weighing 975 grams, was recovered from the possession of accused. Amanullah, which he tied with his waist, whereas a TT pistol .30- bore along with a magazine and 8 live cartridges, which
the accused Attaullah was holding in his hand, and a handgrenade along with fuse, which he was having in his right pocket, were recovered. Similarly, a TT pistol .30-bore along with a magazine
and 8 live cartridges and one hand grenade along with fuse were recovered from the possession of accused Hidayatullah, about which they could not produce any licence or permit. Consequently, the aforesaid case was registered against them.
3. After registration of the F.I.R., investigation of the case was entrusted to one IP
Muhammad Ashraf, who took into possession the recovered explosive material, arms and ammunitions including the vehicle vide memo, sent the TT pistols to Fire-arm Expert FSL and
explosive material to Civil Defence for analysis and report, obtained reports Exh.P/3- B and
Ex.P/3- C and after completion of the investigation, accused were remanded to judicial custody
and the papers were submitted before P.W.3 Mohibullah, IP, who prepared incomplete challan Exh.P/3- D and complete challan Exh.P/3- E and appellants were sent up to face the trial.
4. On the stated allegations, a formal charge was framed and read over to the accused
persons on 12- 2-2010, to which the y did not plead guilty and claimed trial. The prosecution, in
order to prove the accusation, produced three witnesses. P.W.1 Major Mudassir, is complainant of the case, who exhibited Farde -Bayan Exh.P/l -A. P.W.2 Hawaldar Khizar Hiyat is recovery
witness o f explosive material and arms and ammunitions, which were taken into possession vide
memo Exh.P/2- A and P.W.3 Mohibullah, IP, is the challaning officer, who had also given
statement on behalf of the Investigating Officer Muhammad Ashraf, IP due to his illness. Then the prosecution closed its side. 5. Thereafter, the appellants were examined under section 342 of the Cr.P.C., wherein they
denied the prosecution accusation and claimed to be innocent. They did not opt to record their statements on oath as env isaged under section 340(2) of the Cr.P.C., nor produced any witness in
defence. The trial Court, after close of the parties' evidence, vide impugned judgment, convicted and sentenced the appellants, as mentioned hereinabove, hence, this appeal. 6. I hav e heard the learned counsel for the appellants as well as the learned Prosecutor -
General and have also gone through the impugned judgment and record of the case with their valuable assistance. It has been submitted by the learned counsel for the appellants that the
prosecution had failed to prove its case against the appellants beyond reasonable doubt and, thus,
this appeal warrants acceptance with a resultant acquittal of the appellants. On the contrary, the learned Prosecutor -General has maintained that t he prosecution had succeeded in proving the
guilt of the appellants to the hilt and, therefore, the present appeal deserves dismissal.
7. The prosecution case is that the FC personnel, after chase of the appellants from Bhoosa
Mandi Eastern Bypass to Lango Abad Eastern Bypass, apprehended them and recovered the
aforesaid explosive material and arms and ammunitions from their possession. A plain reading of the prosecution evidence shows that there are contradictions and discrepancies, on the basis whereof, the conviction and sentence awarded to the appellants are legally not sustainable. P.W.1
in his cross -examination that, after arrest of the accused and alleged recovery from their
possession, they remained at the site for about two hours, as the vehicle o f the accused persons
was out of order, and, thereafter, they went to police station at about 3- 00 a.m. for registration of
the F.I.R., but the same was lodged at about 5/6- 00 a.m. due to non- availability of the police in
the police station. While on the c ontrary, P.W.2 stated in cross -examination that the accused
persons were arrested at about 1 or 1- 30 a.m. and the police also reached at the spot and,
thereafter, the accused persons were brought to police station and his statement was recorded by the police at 3 or 3 -15 a.m. Both the witnesses have contradicted each other on material aspects
of the case and it is not understandable that when the police was not present at police station at about 3 or 3- 15 a.m., then how the statement of P.W.2 was recorded by the police at the same
time i.e., 3 or 3- 15 a.m., and it is also not understandable, rather unbelievable that when the
police also reached at the spot after the alleged recovery, then why the recovery proceedings were not carried out at the spot, whe reas the contents of the F.I.R. shows a different story
regarding registration of the F.I.R. at about 2- 10 a.m. it is also surprising to note here that the
FC personnel remained at the place of recovery for about two hours without any cogent reasons.
Though the P.W.1 tried to make justification of their stay at the place of recovery that the vehicle of the accused persons was out of order, but such plea is of no legal consequence and does not appeal to a prudent mind, in particular, in such- like situation, it was obligatory upon the FC
personnel to have brought the vehicle to police station by means of tow -chain or they could do
anything for the purpose, but their stay at the spot for about two hours creates serious doubt to the case of prosecution. Moreover, there is also no evidence as to what was happened with the
vehicle of the accused and who repaired it and as to who the vehicle had become out of order. It is also not believable that the accused persons were so fools to keep the explosive mater ial and
arms and ammunitions for considerable longtime despite the fact that the FC personnel were chasing them at the relevant time from Bhoosa Mandi to Lango Abad. In such- like situation,
normally, the culprits tried their level best to conceal the crime , but in the present case, despite
the fact that the FC personnel were chasing them, they did not make an attempt to throw the explosive material or the arms and ammunitions somewhere and waited for the FC personnel to make the recovery from their possessi on, which fact also creates serious doubt to the veracity of
the statements of P.Ws. The factum of long distance between Bhoosa Mandi, where the FC personnel raised blockade, to Lango Abad, where the FC personnel, allegedly, made recovery from the possessi on of the accused persons, can be verified from the statements of P.W.2, who in
cross -examination stated that the accused persons were arrested at about 1 or 1 -30 a.m., whereas
the time of alleged arrival of the accused persons in the vehicle at the blockade has been shown by P.W.1 as 12 -15 a.m., meaning thereby that there is a distance of about 45 minutes or 1 hour
and 15 minutes drive between the place of blockade and the place of recovery. Such calculation
of the aforesaid distance has been made, just for the reason that there is no site sketch or site plan
of the place of occurrence prepared by the police to know the exact distance of the place of blockade and place of recovery. It means that the whole prosecution story is based on mala fide and dishones t intentions, unreliable and untrustworthy. The aforesaid versions have created
doubt in the prosecution story and no reliance can be placed on the testimonies of such
witnesses.
8. The other point for consideration is whether the Expert report brought on record would be
sufficient for conviction. Section 510, Cr.P.C. provides that any document purporting to be used as a report under the hand of any Chemical Examiner or Fire -arm Expert must be duly appointed
by the Government. The prosecution has failed t o place on record any notification, indicating
that the Expert Team was appointed by the Provincial or Federal Government to give such opinion. Even otherwise, the prosecution has failed either to examine Bomb Disposal Technician or Crises Management Officer to prove the authenticity and legality of the certificate. Thus, considering the material available on record in the light of judgments relied upon by the counsel for appellants as well as the evidence and overall circumstances of the case, the prosecut ion has
not only failed to prove the alleged recovery of explosive material and arms and ammunitions from the possession of appellants, but also failed to prove the case without any shadow of doubt. Resultantly, the impugned judgment passed by the Court be low is set aside and the appellants are
acquitted of the charge. They be set at liberty, if not required in any other case.
These are the reasons of my short order dated 19th August, 2011, announced in the open Court.
N.H.Q./115/Q Appeal accepted.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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