2023 Y L R 1821
[Balochistan]
Before Abdullah Baloch and Iqbal Ahmed Kasi, JJ
ABDUL AZIZ alias SADAM ---Appellant
Versus
The STATE---Respondent
Criminal Appeal No. 4 of 2023, decided on 17th April, 2023. (a) Explosive Substances Act (VI of 1908) ---
----Ss. 4 & 5--- Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, or for
making or 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 ---Contradictory evidence on material particulars of the case---Effect ---Accused
was found in possession of 1500 grams explosive substances a primer cord and a detonator tied in a cloth arround his waist ---Complainant stated that detonator was destroyed being dangerous,
but all the witnesses in such regard were silent ---Bomb Disposal Team, as per complainant, who
destroyed the detonator was neither examined during the investigation nor produced before the Trial Court ---Complainant in his testimony contended that 05 grams of explosive substances was
separated for chemical Examination and sealed in parcel No. 1, while recovery witness appeared in witness box produced the said parcel No. 1 and articled the same as said parcel ---Contrary to
the fact that parcel No. 1 and other parcel No. 2 were sent to Forensic Sciences Agency for analysis, the question arose that if both the parcels were sent to analysis, then how recovery witness produced the same before the trial Court, which created doubt in the prosecution story---Head Maharar of Police Station was the witness of safe custody and deposed that recovered explosive sealed parcel were handed over to him, but he did not utter a single word that when he handed over the parcels to the person, who took the same to the Forensic Science Agency---Said contradictions on the part of the witnesses, made the prosecution case doubtful ---Circumstances
established that the prosecution failed to prove its case against the accused beyond any shadow of reasonable doubt ---Appeal against conviction was allowed, in circumstances .
(b) Explosive Substances Act (VI of 1908) ---
----Ss. 4 & 5--- Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, or for
making or 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 ---Recovery of detonator from the possession of accused--- Reliance---Scope ---
Accused was found in possession of 1500 grams explosive substances, a primer cord and a detonator tied in a cloth arround his waist ---As far as r ecovery of detonator from the possession
of accused was concerned, it was important to mention that detonator comprised upon elongated
hollow metal tube containing explosive, however, in the report of Bomb Disposal Commander
any colour, type, gauge, name of metal e.g. Aluminum etc. or even availability of metal tube was
not mentioned---Similarly, Bomb Disposal Commander neither extracted any explosive from
stated detonators nor mentioned its origin/detail ---None of the Bomb Disposal Team had been
produced during the trial by the prosecution, therefore, report of Bomb Disposal Commander
was mere ipse dixit and could not be made basis to hold that the alleged detonator was actually
detonator falling within the definition of Explosive Substances Act, 1908 ---Circumstances
established that the prosecution failed to prove its case against the accused beyond any shadow
of reasonable doubt ---Appeal against conviction was allowed, in circumstances.
(c) Explosive Substances Act (VI of 1908) ---
----Ss. 4 & 5--- Anti-Terrorism Act (XXVII of 1997), S. 7---Attempt to cause explosion, or for
making or 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 ---Accused was found in possession of 1500 grams explosive substances, a
primer cord and a detonator tied in a cloth arround his waist ---Offence under S. 5 of the
Explosive Substances Act, 1908, was charged against the accused persons, but according to S. 7
of the said Act, prior permission for prosecution by the competent authority was required---Bare reading of the said provisions of law revealed that sanction for prosecution for holding trial under Explosive Substances Act, 1908 was mandatory and a condition precedent for prosecution of the accused persons under S. 5 of the said Act ---In absence of the requisite sanction/
permission, entire proceedings taken would be void and without jurisdiction---Word “shall” used in the said section left no room for any departure therefrom ---Appeal against conviction was
allowed, in circumstances.
(d) Explosive Substances Act (VI of 1908) ---
----Ss. 4 & 5--- Anti-Terrorism Act (XXVII of 1997), Ss. 6(2)(ee) & 7 ---Attempt to cause
explosion, or for making or 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 ---Act of terrorism, applicability ---Scope ---Accused was found in
possession of 1500 grams explosive substances, a primer cord and a detonator tied in a cloth arround his waist ---As far as, allegations against the accused were concerned, it was suffice to
say that no relationship of accused with any terrorist organization / proscribed organization could be established in material/evidence to fulfill ingredients of the offence, defined under S. 6(2)(ee) of the Anti -Terrorism Act, 1997---Furthermore, Investigating Officer stated during his statement
before Court that there was no evidence to prove that during investigation, he could gather any evidence, which showed that the accused was member of any terrorist organization--- Thus the
prosecution had failed to prove the charge against the accused---Appeal against conviction was allowed, in circumstances.
Ghulam Hussain and others v. The State and others PLD 2020 SC 61 rel.
Muhammad Akram Shah and Mehrullah Khan Kakar for Appellant.
Ameer Hamza Mengal, Additional Prosecutor General for the State.
Date of hearing: 4th April, 2023.
JUDGMENT
IQBAL AHMED KASI, J. ---Through the instant appeal, appellant has challenged the
validity of the judgment dated 20.12.2022 ("the impugned judgment") passed by the learned
Special Judge Anti -Terrorism Court, Loralai ("the trial Court"), whereby, the appellant was
convicted and sentenced as follows:
"i. Under Section 7(ff) of the Anti Terrorism Act, 1997, the accused Abdul Aziz alias
Saddam son of Muhammad Essa is sentenced to suffer R.I for fourteen (14) years and forfeiture of his property in favour of the State. The benefit of the period of detention during the course of the ongoing trial against the under trial accused persons contained in section 382- B of the Code
of Criminal Procedure, 1898 read with section 32(1) of the Anti Terrorism Act, 1997 is also
granted as a matter of right."
2. The concise facts, arising out of the instant appeal are that FIR No.12/ 2022, under
Section 11/F,11/J, 7- ATA read with Sections 4, 5 of Explosive Act, 1908 ('the Act of 1908') has
been registered on 2nd of August,2022, at 11:20 a.m., by the complainant Muhammad Munir
SI/SHO at Police Station CTD, Loralai, alleging therein that on spy information member of banned TTP had been coming towards Duki and was present in dry stream near Grid Station with
explosive to carry out terrorist activities. On such information, at about 08:20 a.m., he along with
other CTD officials reached at the spot and started surveillance. DSP along with Bomb Disposal (BD) team also reached there and they conducted search from both sides of the dry stream. A person was found while hiding in the bushes, on seeing Police party he tried to escape, but he
was apprehended. He disclosed his name as Abdul Aziz alias Saddam. On his personal search, he was found in possession of 1500 grams explosive substances, three feet nine inches long primer cord and a detonator tied in a cloth round his waist. The detonator was dangerous so it was destroyed by BD team. The appellant/accused was arrested and the recovered explosives were taken into custody.
3. After usual investigation, challan was submitted before the trial Court against the
appellant/accused. A formal charge was framed and read over, to which the appellant/accused
pleaded not guilty and claimed trial. At trial, the prosecution produced following four witnesses in order to establish the charge;
PW-1 Muhammad Munir, IP, is the complainant, who lodged FIR through his Murasila
as Ex.P/1- A.
PW-2 Hakim Ali, SI, is the witness of recovery memo as Ex.P/2- A of the explosive
substance and primer cord in sealed parcel Nos. 1, 1- A, 2 and 2- A as Art.P/1 to Art.P/13. He is
also witness of site inspection memo as Ex.P/2 -B and of recovery memo as Ex.P/2- C of cash
amount of Rs.2,000/ - as Art.P/14. He is also witness of delivery of parcel to PFSA, Lahore.
PW-3 Kamran Malik, ASI, is Head Muharar of CTD Loralai, who kept the parcels and
cash amount of Rs.2,000/ - in his custody.
PW-4 Rana Shabir Ahmed, IP, is the Investigating Officer, who after lodging FIR as
Ex.P/4- A, received certificate from BD team as Ex.P/4 -B, inspected the site and prepared the
map as Ex.P/4- C. He sent Murasilas as Ex.P/4 -D and Ex.P/4- E for analysis of recovered
explosives and for prosecution sanction. He produced copy of CNIC of accused as Ex.P/4- F and
filed incomplete Challan as Ex.P/4 -G. on receiving FSL report as Ex.P/4- H, SHO filed supple -
mentary challan as Ex.P/4 -I.
4. On completion of prosecution evidence, appellant/accused was examined under Section
342, Cr.P.C, wherein, he categorically denied the allegations levelled against him and raised the
plea of innocence. He also recorded his statement on oath under Section 340(2), Cr.P.C and produced in his defence one witness DW -1, Fateh Muhammad.
5. On conclusion of trial, the arguments were heard from both sides and the trial Court,
convicted the appellant/ accused as mentioned in para supra, vide impugned judgment dated 20th December, 2022, hence this appeal.
6. Learned counsel for appellant contended that the impugned judgment is contrary to the
facts and law; that the trial Court without seeking sanction of the Government to try the case, passed the impugned judgment, which is not in accordance with law; that the allegations of committing terrorism is not proved by the prosecution; that there are major contradictions between the statements of complainant and eye- witnesses; that the prosecution has failed to
produce BD Commander, as per prosecution, it destroyed the detonator.
7. On the other hand, learned APG opposed the contention of learned counsel for
appellant/accused and stated that a prompt FIR was lodged, wherein, the accused was
specifically nominated; that a huge quantity of explosive substances was recovered in the presence of witnesses from possession of the appellant, which were sent to PFSA, returned with positive report. He supported the judgment of trial Court on the ground that the impugned judgment is passed on legal as well as factual evidence and there is no occasion to interfere in the same.
A
8. We have heard learned counsel for parties at length and perused the evidence and
documents available on record. The prosecution has failed to prove its case against the appellant/
accused for the reasons that the evidence brought on record by the prosecution is contradictory
on material particulars of the case. The complainant stated that detonator was destroyed being
dangerous, while all the witnesses in this regard are silent. The BD team, as per PW -1, who
destroy the detonator was neither examined during the investigation nor produced before the trial Court. The PW -1 in his testimony contended that 05 grams of explosive substances was
separated for chemical examination and sealed in parcel No. 1, while PW- 2 appeared in witness
box produced the parcel No.1 and articled the same as Parcel No. 1. Contrary to the facts that
parcel No.1 and parcel No.2 were sent to Punjab Forensic Sciences Agency for analysis, the
question arises that if the parcel Nos.1 and 2 sent to analysis, then how PW -2 produced the same
before the trial Court, which created doubt in the prosecution story. PW -3 is Head Maharar of
Police Station and he is the witness of safe custody. He deposed that recovered explosive sealed
parcel were handed over to him, but he did not utter a single word that when he handed over the
parcel Nos.1 and 2 to the person, who took the same to the PFSA. The above contradiction on
the part of the witnesses, make the prosecution case doubtful.
9. As far as, recovery of above mentioned detonator from the possession of
appellant/accused is concerned, it is important to mention here that detonator comprises upon
elongated hollow metal tube containing explosive, however, in the report of Bomb Disposal Commander (Ex.P/4- B) any colour, type, gauge, name of metal e.g. Aluminum etc. or even
availability of metal tube is not mentioned; similarly, Bomb Disposal Commander neither extracted any explosive from stated detonators nor mentioned its origin/detail. It is worthwhile to mention here that none of the Bomb Disposal team has been produced during the trial by the prosecution, therefore, aforementioned report of Bomb Disposal Commander is mere ipse dixit and cannot be made basis to hold that the alleged detonator was actually detonator falling within the definition of Act of 1908. The offence under Section 5 of the Act of 1908 was charged against the respondents, but according to Section 7, of the said Act, prior permission for prosecution by the competent authority was required. For ready reference it would be appropriate to reproduce the relevant provision, which reads as under: -
"7. Restriction on trial of offence. 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 sixty days of the
registration of case the Government such consent shall be deemed to have been duty given.]"
It is crystal clear from the bare reading of the above mentioned provision of law that sanction for prosecution for holding trial under Explosive Substances Act is mandatory and a condition precedent for prosecution, of the respondents, under Section 5 of the said Act. In absence of the requisite sanction/permission, entire proceedings taken would be void and without jurisdiction. The word "shall" used in above mentioned Section, leaves no room for any departure there from.
10. As far as, allegations against the appellant is concerned, it is suffice to say that no
relationship of appellant with any terrorist organization/proscribed organization could be
established in material/evidence to fulfill ingredients of the offence, defined under Section
6(2)(ee) of the Anti -Terrorism Act, 1997. Further -more, PW -4 Rana Shabir Ahmed,
IP/Investigating Officer, stated during his statement before the Court that there is no evidence to
prove that during investigation, he could not take in evidence, which show that the
appellant/convict is member of any terrorist organization, thus, the prosecution has failed to
prove the charge against the appellant/convict. Reliance is placed to the case of "Ghulam
Hussain and others v. The State and others" PLD 2020 Supreme Court 61.
11. Now adverting to the defence version, appellant has taken specific plea that he was
abducted much prior to the registration of present case and subsequently roped in this case at
belated stage; in this regard, he was himself a best witness to depose entire detail that who
abducted him, where he was kept, when he was brought to the place of occurrence and of course law has provided a chance to him in this behalf through Section 340(2), Cr.P.C.
In view of what has been discussed above, the instant appeal is allowed, the impugned
judgment dated 20th December, 2022, passed by the Special Judge of ATC Court, Loralai, is set aside and the appellant Abdul Aziz alias Saddam son of Muhammad Essa is acquitted of the charge in case FIR No. 12 of 2022, registered with Police Station CTD, Loralai. The appellant is
in custody, he shall be set at liberty, if not required in any other case.
JK/88/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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