Fazal-ur-Rehman vs state.

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A. No. 174-P/2014 Date of hearing...26.01.2015

Afzalur Rehman Vs The State

Appellant(s) by Mr. Shahid Naseem Chamkani Advocate.

Respondent(s) by Syed Qaisar Ali Shah AAG, for the State.

ABDUL LATIF KHAN, J:- Through this single judgment we intend to dispose of instant appeal (Cr.A No.174-P/14) filed by appellant Afzalur Rehman and connected Cr.A No.173-P/2014, filed by Niaz Muhammad, against the judgment dated 20.3.2014 passed by learned Judge, Anti Terrorism Court, Kohat, whereby both the appellants charged in case FIR No.164 dated 5.6.2013 u/s 4/5 Exp: Sub: Act/ 7 ATA of P.S.

Banda Daud Shah, Karak, were convicted and sentenced as under:-

“U/S 5 Exp: Sub: Act, 1908 (Act IV of 1908) for a term of 14 years (R.I) each,

U/S 7 ATA 1997 (Act No.XXVIII of 1997) for a term of 14 years and forfeiture of their whole property to the Government as envisaged u/s 5-A of Exp: Sub:

Act 1908 (Act IV of 1908). Both the sentences would run consecutively and benefit of Section 382-B Cr.PC was also extended to both the appellants.”

2.As per prosecution case, during Nakabandi conducted on spy information regarding carrying of explosive material, the local police intercepted the Truck bearing No.E-8454/Peshawar being driven by appellant Afzal-ur-Rehman accompanied by Niaz Muhammad (appellant). The truck was searched which led to the recovery of huge quantity of explosive material and other articles beneath the cartons of fruit. Consequently both the appellants were arrested; the truck alongwith explosive materials were taken into possession and a case vide FIR mentioned above was registered against the appellants.

2.After completion of investigation, complete challan against the appellants was submitted in the trial Court where in order to prove its case, the prosecution examined the following 09 PWs:-

“PW.1 Saifullah HC on receipt of murasila has registered the case vide FIR Ex.PA; PW.2 Anar Gul Moharrir, produced registration of Truck NO.8454/Peshawar alongwith permit, application of Hussain Gul in the name of MRA Peshawar, Insurance forms in the name of Muhammad Wali, Fitness Certificate, before C.O, B.D. Shah Muhammad Ghani, which was taken into possession vide memo Ex.PC;

PW.3 Shamim Khan ASI is marginal witness to pointation memo Ex.PW.3/1, recovery memos Ex.PC & Ex.PC/2;

PW.4 Muhammad Ghani SI, has intercepted the Truck No.E- 8454/Peshawar containing huge quantity of explosive materials being

driven by appellant Afzalur Rehman and accompanied by Niaz Muhammad and also conducted initial proceedings and narrated the story as per his stance taken in the report; PW.5 Noor Wali Khan SI, was present on the spot with PW.4 at the time of occurrence and witnessed the whole proceedings and also supported the version of PW.4 in his Court statement; PW.6 Sheraz Khan JMIC, has recorded confessional statement of appellant Afzal-ur-Rehman u/s 164/364 Cr.PC; PW.7 Abdur Rehman No.554 took the murasila to the P.S from the spot; PW.8 Sher Dawar FC had examined the explosive materials including hand grenades and detonators recovered from the truck driven by appellant Afzal-ur-Rehman;

PW.9 Muhammad Ghani Khan

Inspector has conducted investigation in the instant case;

3.At conclusion of trial the learned trial Court convicted and sentenced both the appellants vide impugned judgment hence the instant appeal as well as connected Criminal Appeal have been filed by both the appellants.

Arguments heard and record perused.

4.We would first take up the appeal of convict Niaz Muhammad. Admittedly the truck in question was not driven by him rather it was driven by the appellant/convict Afzal-ur-Rehman and the knowledge of convict Niaz Muhammad has also not been proved. His presence on the spot is also doubtful as according to confessional statement of co-appellant Afzal-ur Rehman, his name is not mentioned in the said confessional statement nor any role of explosive materials as well as committing suidice attack has been attributed to the appellant Niaz Muhammad rather the name of one Said Muhammad has been mentioned in the said confessional statement but the prosecution/I.O, has failed to conduct investigation on that line as to whether Said Muhammad or Niaz Muhammad were one and same person or Said Muhammad is

another person. The appellant Niaz Muhammad was allegedly found accompanying the other appellant who was driving the truck in question. It has also not been proved by the prosecution as to whether he was cleaner or only accompanying the main accused at the time of occurrence which creates doubt in the presence of appellant Niaz Muhammad which is duly supported by the confessional statement of co-appellant as well as I.O, who stated that the accused had no intention for any suicide attack in the Pakistan. The I.O, has also exonerated the appellant from any accusation as per his Court statement wherein he admitted that he had clearly mentioned in the Zimni No.9 that accusation against appellant Niaz Muhammad does not stand proved meaning thereby that presence of appellant/Niaz Muhammad on the spot at relevant time is doubtful.

5.The appellant Niaz Muhammad has also not confessed his guilt before the competent Court linking him to be the member of gang of terrorist organization. The prosecution has also failed to bring any cogent and strong evidence against him

which could link him with the ownership of truck in question nor any registration document regarding ownership of truck in question or driving license etc has been recovered from his possession. The record is also silent about any history of previous involvement or conviction of the appellant in such like activities which creates doubt in the prosecution case especially when he was not named by the co- appellant in his confessional statement nor any role or intention of the present appellant has been described in the said confessional statement, therefore, the prosecution has miserably failed to prove its case against the appellant/convict Niaz Muhammad beyond any shadow of doubt. On mere presumptions and surmises, the appellant cannot be convicted, therefore, the order of conviction to the extent of appellant Niaz Muhammad passed by trial Court, is based on mis-reading and non-reading of prosecution evidence, which needs interference by this Court.

6.So far as the other appellant/convict Afzal-ur Rehman is concerned, he was arrested red handed on the spot while driving the truck loaded

with huge quantity of explosive materials etc and being driver of the vehicle he was in conscious knowledge of the articles being carried in the said vehicle for which he failed to furnish any plausible explanation as to why he was carrying such a huge quantity of explosive materials in the truck. The recovery has been duly proved by the prosecution witnesses examined in the trial Court. The local police on spy information regarding transportation of huge quantity of explosive materials had conducted Nakabandi under the supervision of PW.4 (Muhammad Ghani SI) who alongwith PW.5, PW.8 and other police officials recovered huge quantity of explosive materials from the truck driven by appellant Afzal-ur-Rehman. The appellant has also made confession before PW.6 Sheraz Khan JMIC, wherein he narrated the whole story regarding the occurrence and admitted that he was aware of the explosive materials lying in the truck which was being transported for blast. In order to prove its case the prosecution examined the concerned Magistrate as PW.6, who fully supported the prosecution case by stating that after observing all

legal formalities, he recorded confessional statement of appellant who was ready for recording the same and after recording his confessional statement, the appellant was sent to judicial lockup.

No illegality during the course of recording confessional statement has been pointed out by the defence nor any ill-will or enmity has been pointed on behalf of complainant/prosecution regarding false involvement of appellant in the commission of offence. All the prosecution witnesses were subjected to lengthy cross examination, however, no substantial or material contradiction or any type of infirmity was brought on record in the testimony of these witnesses though some minor discrepancies are there but the same are not sufficient for acquittal of the appellant. The appellant, after having been found in possession of explosive materials, could not offer any defense nor opted to appear as his own witness in his defense under Section 340 (2) Cr.P.C. No enmity or biasness has been attributed to the complainant or the marginal witness of recovery. Since he was found in possession of such a huge quantity of

explosive materials then, the legal presumption operated against him and he was required to have dislodged the same by leading defense evidence, which he failed to do so. Furthermore, such like offences of blast/explosions are increasing day by day in the whole country result into the loss of lives of innocent peoples and also affecting the peaceful lives of the citizens of this country which requires to be dealt with iron hands. Therefore, the appellant was rightly held guilty for the crime and his conviction & sentences is based on sound reasons and proper appraisal of evidence to which no exception could be taken.

7.For the aforesaid reasons, the instant Criminal Appeal No.174-P/14 filed by appellant Afzal-ur-Rehman, is dismissed and the conviction and sentenced awarded to him by learned trial Court through impugned judgment is maintained.

8.The connected Cr.A No.173-P/2014 filed by Niaz Muhammad is allowed and the conviction and sentenced passed to his extent by learned trial Court is set aside and he is acquitted of the charges leveled against him. He is in custody,

be released forthwith if not wanted in any other case.

9.It is pertinent to mention that the trial Court in the lower portion of his judgment has issued direction to the prosecution for arrest of one Said Muhammad (father of appellant Niaz Muhammad), submitting supplementary challan against him and in case of his non-arrest, proceedings u/s 204/87 Cr.PC and challan u/s 512 Cr.PC, have been ordered to be submitted which is not in accordance with law as the trial Court cannot step into the shoes of investigation agency by taking suo moto action because only name “Said Muhammad” has been mentioned in the

confessional statement of convicted appellant Afzal- ur-Rehman and no parentage or address of said person has been mentioned in the said confessional statement nor it has been mentioned that the said person was the father of appellant Niaz Muhammad, so how the trial Court came to know that it was the father of Niaz Muhammad. It was the duty of the I.O, to investigate on this line after arrest of both the appellants but he did not bother to do so

for the reasons best known to him rather he has not even mentioned that who was that Said Muhammad which is great negligence on behalf of the I.O, who was duty bound to investigate the matter in order to ascertain the actual person accompanying the appellant/convict which shows lack of interest on behalf of the I.O and that he has not given due weight to the investigation to the extent of said person for the reasons best known to him. So the findings given by the trial Court to the extent of Said Muhammad are not in accordance with law rather it amounts to harassment of innocent peoples as it does not mean that a person having similar name to that of an accused without any parentage or address, be involved in the commission of offence instead of actual culprit. The copies of this judgment be sent to the trial Court for information & guidance and to the I.O, concerned with a warning to be careful in future.

Announced.

Dt.26.01.2015.

JUDGE

JUDGE

“A.Qayum”