Mumtaz vs State

Judgment Sheet

IN THE PESHAWAR HIGH COURT, PESHAWAR

JUDICIAL DEPARTMENT

JUDGMENT

Cr.A No.429-P of 2014 Date of hearing......28/01/2015

Mumtaz Vs The State.

Appellant(s) by Mr. Muhammad Saeed Khan Advocate.

Respondent(s)/ State by Mr. Muhammad Riaz Khan Painda Khel AAG.

ABDUL LATIF KHAN, J:- This appeal has been preferred against the judgment dated 26.6.2014, passed by learned Judge, Anti Terrorism Court-I, Peshawar, whereby the appellant Mumtaz charged in case FIR No.117 dated 25.1.2014 u/s 324/353/34 PPC/ 13 AO/ 5 Exp: Sub: Act/ 7 ATA, P.S. Badaber, was convicted and sentenced as under:-

“U/S 324 PPC r/w 7(b) of the ATA 1997 to suffer 10 years R.I, with a fine of Rs.50,000/- and in default thereof to suffer further one month

SI.

U/S 353 PPC r/w 7 (h) of the ATA 1997 to suffer 5 years R.I with a fine of Rs.50,000/- and in default thereof to suffer further one month SI,

U/S 5 Exp: Sub: Act 1908 r/w 7(ff) of the ATA 1997 to suffer 14 years R.I

and if there is any property of accused Mumtaz it will be forefeited to the Government u/s 5-A of the Exp: Sub: Act 1908,

U/S 13 A.O/ 7 ATA 1997 to suffer 5 years R.I, with a fine of Rs.50,000/- and in default thereof to suffer further one month SI. All the sentences shall run concurrently and benefit of section 382-B Cr.PC was extended to the appellant.”

2.As per prosecution case, the house of Mumtaz (appellant) & Syed Mukhtiar was raided by the local police under the supervision of S.P, Rural, DSP Saddar Circle and huge explosive material and other allied articles were recovered from a residential room of the said house. Appellant Mumtaz and Sharif were arrested on the spot while the co-accused Said Mukhtiar decamped from the spot. A Klashinkov was also recovered from possession of appellant. Consequently all the three accused were booked for the offences mentioned in the instant FIR.

3.After completion of investigation, complete challan against accused was submitted in the trial Court where appellant alongwith co-accused Muhammad Sharif were produced while proceedings u/s 512 Cr.PC were initiated against Azmat Ullah & Syed Mukhtiar.

After framing of formal charge against the appellant and co-accused the prosecution in order to prove its case, examined the following 8 witnesses:-

PW.1 Gran Ullah Khan SHO submitted

complete challan against accused in the instant case;

PW.2 Fazal Sher SI is Seizing Officer/complainant in the instant case who during raid recovered explosive materials from the house of appellant and also arrested the appellant alongwith Klashinkov and co-accused Sharif; PW.3 Khista ur Rehman SI on receipt of murasila registered the case vide FIR Ex.PA/1; PW.4 Mushtaq Khan SI, is marginal witness to the recovery memo Ex.PW.2/2 vide which the recovered arms and ammunitions and Klashinkov with rounds recovered from appellant were taken into possession by the I.O;

PW.5 Sayyar Constable has taken murasila to the P.S, for registration of the case; PW.6 Mohammad Ilyas Khan Judicial Magistrate has recorded confessional statements of appellant and co-accused Muhammad Sharif in the instant case; PW.7 Muhammad Ishaq being cousin of owner of the house Raees Khan (late) has submitted his report Ex.PW.7/1. PW.8 Taj Malook Khan Inspector has conducted investigation in the instant case.

4.At conclusion of trial, the learned trial Court vide impugned judgment dated 26.06.2014, acquitted co-accused Muhammad Sharif from the charges whereas convicted and sentenced the appellant, hence the instant Criminal Appeal filed by appellant.

Arguments heard, record perused.

5.Perusal of record reveals that the local police during combing gasht on receiving information raided the joint house of appellant and absconding co- accused but only appellant and co-accused Muhammad Sharif were arrested while absconding co-accused Syed Mukhtiar decamped from the spot. Perusal of record reveals that no search warrant was obtained for conducting raid on the house from the competent Court which is required under the law in order to ensure the sanctity of Chadar and Char Dewari but the local police did not bother to obtain any search warrant. Besides, no elder of the locality was associated by the raiding party at the time of raid conducted on the house jointly owned by appellant and co-accused which is violation of provisions of Section 103 Cr.PC as it is repeatedly held that the requirement of Section 103 Cr.PC are that two members of the public of the locality should be Mashirs to the recovery, is mandatory unless it is shown by the prosecution that in the circumstances of a particular

case it was not possible to have two Mashirs from the public but in the instant case no such reason/ explanation has been given by the prosecution for not associating independent witness to the recovery proceedings.

6.Admittedly the house from which recovery of alleged explosive material effected, was joint house where other inmates including male & females were residing so it is not clear as to how the police party came to know that the room from which the recovery was effected, belonged to appellant though only residential room of the house has been mentioned in the murasila but lateron in Court statement it was introduced for the first time that it was the residential room of appellant.

The prosecution has also not produced the lady constable for recording her statement before trial Court in support of its case nor she was cited as marginal witness to the recovery proceedings meaning thereby that she was either not available with the raiding party at the relevant time or she was not willing to give statement in support of prosecution but lateron for filling up the lacuna and in order to bring the prosecution case in line, her name was mentioned in the column of witnesses.

7.It is also surprising to mention that as per prosecution story all the accused started firing at police

party who also retaliated in self defence but only one Klashinkov was recovered from possession of appellant while co-accused was arrested empty handed which is not appealable to a prudent mind that if all the accused were firing then why no weapon was recovered from his possession or at his instance when he was allegedly firing at relevant time.

8.The alleged Klashinkov was recovered from the appellant and empty shells from the places of appellant on 25.1.2014 and as per application to FSL, these were sent on the same date but surprisingly these were received in the FSL on 25.2.2014, after delay of about one month which creates its recovery doubtful as in whose safe custody the Klashinkov was lying during this period nor any statement of concerned official has been recorded in this regard. Furthermore, it was examined on 28.3.2014, after receipt of one month in the FSL and after two months of the occurrence, which creates dint in the prosecution case.

9.Likewise the explosive materials were recovered on 25.1.2014 while it was sent to the B.D.U, on 26.1.2014 as per application Ex.PW.8/3 after one day of the occurrence for examination but surprisingly these were received in the B.D.U, on 5.5.2014 after delay of more than three months for which no

explanation has been furnished by the prosecution as to in whose safe custody these explosive were lying nor any statement of the concerned custodian has been recorded in this respect. Besides, the same were examined in the B.D.U, on 3.6.2014 after delay of about 28 days of the occurrence. It is also of worth perusal that in the report of B.D.U, the name of person who had examined the explosive material, have not been mentioned only signature has been put “For Assistant Inspector General of Police BDU, Special Branch, KPK, Peshawar” which is mystery that who was the signatory of the report and who had examined the explosive substance. The prosecution has also not produced any expert of B.D.U, or signatory of report before the Court nor name of concerned official has been mentioned in the list of witnesses, which shatters the credibility of recovery of explosive materials from the house of appellant.

10.So far as confession of appellant is concerned, though appellant and co-accused recorded their statements u/s 164/364 Cr.PC, before the Judicial Magistrate (PW.6) but the same did not disclose any knowledge of presence of above explosive nor has confessed his guilt to the extent that he was having the same for any terrorist or sabotage activities. It is also

very strange that allegedly two accused were arrested on the spot, both recorded their confessional statements but on same set of evidence produced by prosecution, one is acquitted and other is convicted by the learned trial Court by observing in Para 23 of his judgment “that the prosecution has miserably failed to prove the presence of accused Muhammad Sharif at the time of raid” so when presence of co-accused on the spot is declared doubtful then the presence of appellant is also doubtful as both were allegedly arrested on the spot so convicting one person and acquitting other on same set of evidence is discrimination of justice which is against law. The prosecution also failed to bring any evidence on record regarding any link of appellant with the banned organization of Taliban or any other terrorist organization which could connect him with the Anti-state or terrorist activities and mere charging the appellant in absence of any solid, confidence inspiring and strong evidence, he cannot be convicted.

11.It is also pertinent to mention that sanction for trial against accused required u/s 7 of Explosive Substances Act, 1908 has not been obtained by the prosecution from the Provincial Government which is a condition precedent and therefore on this score too the trial proceedings conducted are not lawful.

12.In view of above all, the prosecution case is full of doubt the benefit of which must go the accused and as per settled law for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused. As the prosecution has failed to prove the guilt against the appellant beyond any shadow of doubt, therefore, his conviction cannot be maintained.

12.For the aforesaid reasons, we accept the instant appeal by setting aside the conviction and sentence awarded to appellant/convict vide impugned judgment dated 26.06.2014 and acquit him of the charges levelled against him. He is in custody, be released forthwith if not wanted in any other case.

These are the reasons of our short order of even date.

Announced Dated: 28.1.2015.

JUDGE

JUDGE

“A.Qayum”