2018 Y L R Note 280
[Balochistan (Sibi Bench)]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
ABDUL RAZZAQ ---Appellant
Versus
The STATE--- Respondent
A.T.A. Criminal Appeal No.(s) 144 of 2017, decided on 19th January, 2018.
Anti Terrorism Act (XXVII of 1997) ---
----S. 7---Explosive Substances Act (VI of 1908), Ss. 4 & 5--- Possessing explosive to
carry out terrorist activities ---Appreciation of evidence ---Benefit of doubt ---Prosecution
case was that explosive material weighing 550 -grams were recovered from the possession
of the accused ---Prosecution had produced four witnesses in order to prove the charge
against the accused, but they were not consistent and confidence inspiring ---Complainant
of the case appeared as witness, who mostly reiterated the contents of his fard -e-bayan ,
but during cross -examination, the defence had succeeded in shaking his testimony ---
Complainant admitted that the explosive substance along with the accused was handed
over to the Investigating Officer on the following day of his arrest ---Complainant had
stated that the weighing of the explosive substance was carried out at Wing Headquarter --
-Complainant had admitted that no detonator, wires or remote control were recovered
from the possession of the accused--- Recovery witn ess contradicted the statement of
complainant and stated that the weighing of the explosive was carried out by Naib Tehsildar in Police Station ---Investigating Officer admitted that the analysis report was
obtained from Commander Civil Defence instead of F orensic Science Laboratory; that
weighing of explosive was carried out by the F.C. authorities; and that Investigating Officer had admitted that the challan of the case remained in his possession from 25th July 2017 to 3rd August 2017, wherein the name of the accused was not mentioned, while
prior to the preparation of challan, the accused was shifted to judicial custody ---Record
showed that the explosive substance was neither sealed at the spot nor was sent to the
Forensic Expert which was necessary to prove the charge against the accused ---
Conviction under the such cases could only be maintained if the recovered explosive was sealed at the spot and the opinion of the Forensic/Ballistic Expert was produced on record
to prove that the material so recovered w as, in fact, explosive substance--- Report
obtained from Commander Civil Defence could not be termed to be forensic or expert
opinion as envisaged under S.510, Cr.P.C.---Nothing on record, which showed that the Commander Civil defence had requisite qualific ation to analyze any explosive substance-
--Said infirmities had created sufficient doubts in the case of prosecution and under the
law the accused was entitled to get the benefit of the same---Appeal was allowed and
accused was acquitted in the circumstances by setting aside conviction and sentence
recorded against him by the Trial Court. [Paras. 7, 8 & 9 of the judgment]
Saeed Ahmed Langove for Appellant.
Jamil Akhtar Gajani, A.P.G. for the State.
Date of hearing: 29th December, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Appeal
No.(S)144 of 2017 filed by the appellant Abdul Razzaq son of Shadi Khan, against the judgment dated 6th October, 2017 (hereinafter referred as "the impugned judgment") passed by the learned Special Ju dge, Anti -Terrorism, Sibi Division at Sibi, (hereinafter
referred as, "the trial Court"), whereby the appellant was convicted under Section 4 of
Explosive Substances Act, 1908 and sentenced to suffer Seven (07) years R.I. and under
Section 6 (2)(ee) read w ith Section 7(ff) ATA of 1997 to suffer fourteen (14) years R.I.,
with the benefit of Section 382- B, Cr.P.C. and both the sentences were ordered to run
concurrently.
2. Facts of the case are that on 7th July 2017, the complainant Naib Sobedar
Muhammad Ejaz , lodged FIR No.16/2017 at Levies Thana Mach District Kachi, under
Sections 4, 5 of Explosive Substances Act, 1908 read with Section 7 of ATA, 1997,
stating therein that on the day of occurrence he along with other F.C. personnel were
patrolling on Nationa l Highway, when they reached at Aab- e-Gum near Gas -Wall, where
they saw a person in suspicious condition, who on seeing the F.C. personnel, tried to
escape, but he was apprehended and on query he disclosed his name as Abdul Razzaq son of Shadi Khan and on search of the said person recovery of explosive material weighing 550- grams were effected.
3. In pursuance of above FIR, investigation was entrusted to PW -4 Mouzam Ali,
Naib Tehsildar, who during investigation arrested the appellant; weighed the contraband
and prepared recovery memo; visited the site and prepared inspection memo; obtained analysis report from Commander Civil Defence; obtained prosecution sanction; recorded the statements of witnesses under section 161, Cr.P.C. and on completion of investiga tion
submitted the challan in the trial Court.
4. At the trial, the prosecution produced four witnesses. The appellant was examined
under section 342, Cr.P.C. He did not record his statement on oath under section 340(2), Cr.P.C. and also not produced any w itness in his defence. On conclusion of trial and
hearing the arguments, the trial Court convicted and sentenced the appellant as mentioned above, whereafter the instant appeal has been filed.
5. Learned counsel for appellant argued that the whole story so narrated in the FIR is
doubtful; that the case of prosecution is lacking independent corroboration; that the
recovery of explosive substance from the exclusive possession of the appellant is doubtful; that the recovered explosives were neither sealed at t he spot nor were sent to
FSL for analysis for its opinion; that the prosecution has failed to prove the charge through consistent and confidence inspiring evidence; that the impugned judgment of trial Court is result of misreading and mis -appreciation of m aterial available on record.
6. Learned Additional Prosecutor General while supporting the impugned judgment
contended that the prosecution through consistent and confidence inspiring evidence has
succeeded in proving the charge with regard to recovery of explosive substance from the
possession of appellant and the appellant has failed to prove his false implication by the F.C.
7. Heard the learned counsel and perused the available record. The prosecution in
order to establish the charge has produced the evidence of four witnesses but the same are not consistent, confidence inspiring. The complainant of the case appeared as PW -1, who
mostly reiterated the contents of his fard -e-bayan Ex.P/1- A, but during cross -examination
the defence has succeeded in shaking his testimony. PW -1 admitted that the explosive
substance along with the appellant was taken to F.C. headquarter and on the following day the same were handed over to I.O. He also admitted that the weighing of the
substance was carried out at Wing Headquarter by Col. Hamayoun Rasheed in the
morning. PW -1 admitted that no detonator, wires or Remote Control were recovered from
the possession of the appellant. PW -2 being recovery witness contradicted the statement
of PW -1 and stated that the we ighing of the explosive was carried out by Naib Tehsildar
in Levies Thana. PW - l and PW -2 admitted in their cross -examinations that after filing
complaint they never went to Levies Thana. PW -3 is the witness of inspection memo.
PW-4 is the Investigating Of ficer of the case, who counted the steps taken by him during
investigation and further admitted that the analysis report was obtained from Commander
Civil Defence instead of FSL. He contradicted the statement of recovery witness and
stated that the weighin g of explosive was carried out by the F.C. Authorities. The I.O.
admitted that the challan of the case Ex.P/4- E remained in his possession from 25th July,
2017 to 3rd August 2017, wherein the name of the appellant was not mentioned, while prior to preparing the Challan Ex.P/4 -F the appellant was shifted to judicial custody.
8. Record reflects that the explosive substance allegedly recovered from the
possession of appellant was neither sealed at the spot nor was sent to the Forensic Expert, whereas as per ad mitted principles of law the sealing of recovered explosive or any arms
at the spot is necessary to prove the charge against the appellant and the conviction under the explosive substance cases can only be maintained if the allegedly recovered explosive
was sealed at the spot and the opinion of the Forensic/Ballistic Expert is produced on
record to prove that the material so recovered was, in fact, explosive substance. Thus,
mere words of the prosecution witnesses are not enough to presume that the recovere d
material was explosive substance, when otherwise the same were not sealed at the spot.
The report so obtained from Commander Civil Defence cannot term to be Forensic or
expert opinion as envisaged under Section 510, Cr.P.C. There is nothing on record
showing that the Commander Civil Defence had requisite qualification to analyze any explosive substance.
9. All the above infirmities have created sufficient doubts in the case of prosecution
and under the law the appellant is entitled to get the benefit of t he same, but the same was
not extended in his favour by the trial Court. The judgment of trial Court suffers from misreading and mis -appreciation of the evidence available on record.
For the above reasons, the appeal is accepted. The impugned judgment dat ed 6th
October, 2017 passed by the learned Special Judge, Anti -Terrorism, Sibi Division at Sibi,
is set -aside and the appellant Abdul Razzaq son of Shadi Khan, is acquitted of the charge.
The appellant being in custody, is ordered to be released forthwith. if not required in any
other case.
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