IN THE HIGH COURT OF SINDH, CIRCUIT COURT LARKANA

Cr. Jail Appeal No.D-38 of 2023

Cr. Jail Appeal No.D-39 of 2023

Cr. Jail Appeal No.D-40 of 2023

BEFORE:

Mr. Justice Omer Sial,

Mr. Justice Khalid Hussain Shahani

Appellants: 1.Ahsan Ali s/o Khan Muhammad Panhwar

(in Cr. Jail Appeal No.D-38/2023) 2.Kashif s/o Abdul Majeed Lashari

Appellant: Ahsan Ali s/o Khan Muhammad Panhwar

(in Cr. Jail Appeal No.D-39/2023)

Appellant: Kashif s/o Abdul Majeed Lashari

(in Cr. Jail Appeal No.D-40/2023)

Through Mr. Rafique Ahmed K. Abro, Advocates.

State: Through Mr. Ali Anwar Kandhro, Additional Prosecutor General for the State.

Date of hearing: 13-02-2025

Date of Judgment: 18-03-2025

J U D G M E N T

Khalid Hussain Shahani, J. The Appellants Ahsan Ali and Kashif were convicted in a cases bearing crime Nos.5/2023, 6/2023 and 7/2023, PS Lakhi Ghulam Shah, District Shikarpur, and sentenced R.I for 07 years for offence u/s 5 of the Explosive Substance Act, 1908 r/w section 7 of Anti-Terrorism Act, 1997 and also u/s 24 Sindh Arms Act, 2013 for 07 years, and fine of Rs.30,000/- (thirty thousands) each, by the learned Anti-Terrorism Court, Shikarpur vide judgment dated 28.11.2023. They would have to remain in jail for another six months, if they do not pay the fine, with benefit of section 382-B Cr.P.C.

02. The facts that led the registration of the case are, on January 09, 2023 at about 1930 hours, whilst snap checking, ASI Meer Muhammad stopped a car bearing registration No.ALQ-005, arrested appellants along with a Hand Grenade, unlicensed K.Kov, a T.T pistol and bullets. Consequent upon, they were booked in three FIRs.

03. Appellants pleaded “not guilty” and claimed trial. To substantiate its case, the prosecution examined ASI Meer Muhammad (complainant), HC Abdul Jabbar (mashir of arrest and seizer), Inspector Rahmatullah Odho (Second Investigating Officer), Inspector Shahnawaz (Third Investigating Officer), PC Asif Hussain (Carrier of weapons for FSL), WHC Taufique Ahmed (In-charge Malkhana), Inspector Deedar Hussain (First Investigating Officer), ASI Muhammad Ismail (Special Branch Larkana). In their statements u/s 342 Cr.P.C, the appellants denied their wrong doings.

04. At the outset, learned counsel for the appellants submitted, the safe custody and safe transmission of the weapons from time of seizer till its deposit at the FSL was not proved at trial. Learned counsel for the appellants drawn our attention to the recovery memo produced at Exhibit 5/B showing except a grenade, a K.Kov 7.62 bore along with magazine and 10 bullets of same bore were alleged to be recovered from accused Ahsan Ali, but such fact was belied by the FSL report produced at Exhibit 8/A, showing it was .44 bore rifle with magazine and 10 live cartridges of 7.62 bore. He also put stance, there was unexplained delay of 10 days in depositing weapons with Forensic Lab.

05. The Additional Prosecutor General reluctantly agreed that safe custody as directed by the Supreme Court was not proved.

06. The complainant ASI Meer Muhammad testified at trial deposed, after arrest and seizure, he brought the case property duly sealed, handed over to WHC, and the case papers to Inspector/I.O Deedar Ali Ghumro for investigation. Incharge BDS Muhammad Ismail Gilal was called, he defused the Hand Grenade towards eastern side of PS Lakhi by digging a ditch on following day of the incident. The case property, except the pieces of Hand Grenade (if any) was sent for Chemical Analysis with unexplained delay of 10 days on 19-01-2023. The memo of arrest and seizure (Exhibit 5/B) showing recovery of 10 bullets of 7.62 bore K.Kov is belied by the Forensic report (Exhibit 8/A), showing .44 rifle sent for FSL along with 05 cartridges of 7.62 mm bore. Here, the question arises, if the rifle was .44 bore as per FSL, why its magazine was containing 7.62 bore cartridges; besides, as per memo of seizure, 10 bullets/cartridges of 7.62 bore were sealed for FSL and such report shows recovery of 05 cartridges from the parcel. In this respect, further statements of the complainant and mashir HC Abdul Jabbar recorded on 14-02-2023 on the basis of FSL report not carry weight and effect. Rather, such fact draws inference of tempering with the case property. The diffuse of the Hand Grenade is shown on the following day of incident by blasting in a ditch, but all the witnesses failed to pointed out the number of the pieces recovered from outcome of such blast on one hand and on the other, admittedly same have not been sent for the FSL to corroborate such important piece of evidence to attract the ingredients of section 5 of the Explosive Substance Act, 1908. Therefore, the recovery of Hand Grenade seems to be mystery, without corroboration from any corner. Such lapses on the part of prosecution have made the episode doubtful.

07. Glance on evidence brought on the record, it does not click the prudent mind, the appellants being armed with lethal weapons on a signal, stopped without offering resistance and easily in ordinary manners during odd hours, handed over the weapons to the complainant party comprising of four members. The investigation conducted by three investigating officers is silent in respect of exploring the evidence that appellants have remained indulged in such like activities. Even, no permission/consent has been sought from the Provincial Government before commencing trial against the appellants for offence u/s 4/5 of the Explosive Substance Act, 1908 in pursuance of section 7 ibid, which provides, no court shall proceed to the trial of any person for an offence against this Act, except with the consent of Provincial Government. Besides, mere recovery of hand grenade from accused does not automatically constitutes an act of “terrorism” under Anti-Terrorism Act, 1997, as first part contained in section 6(1), (b) and (c) of the said Act deals with mens rea mentioning the “design” or the “purpose” behind the action and second part falling under section 6(2) of the said Act, specifying the actions which, if coupled with the mens rea mentioned above, would constitute the offence of terrorism. Same is lacking in the present case. Besides, no private person associated in recovery proceedings; such recovery is, therefore, not satisfactorily proved. In the prevailing circumstances, the provisions of section 4/5 Explosive Act, 1908 and 6/7 of Anti-Terrorism Act, 1997, do not attract to the facts of the case. Reliance is placed on case of Ghulam Hussain V. The State (PLD 2020 SC 61).

08. Record further reveals that no efforts have been made by the investigating officers about the vehicle/XLI car bearing registration No.ALQ-005 except statement of Pawan Kumar, owner of Shan Motors Ghotki, showing it was owned by Ghulam Sarwar and subsequently sold out to one Arbab Malik. None of them has either been examined or shown accused of the case. Therefore, defense plea taken by the appellants in their statements u/s 342 Cr.P.C could not be lost of the sight that they were victims of police and taken from Quetta on 09-12-2022 by Abdul Jabbar Mahar, the Incharge CIA Sukkur, over the matter of contracting marriage by Sajid Hussain, the brother of appellant Kashif with Mst. Sana Soomro out of free will.

09. In the light of dictum laid down by the Honorable Supreme Court and observing that in the present case, neither the property shown in memo of arrest and seizure is consistent with the FSL report, nor pieces of Hand Grenade sent for FSL, nor efforts extended by the prosecution about the owner of vehicle/car, and thus, safe custody and safe transmission of the weapons were not proved. Conviction, therefore, cannot be sustained. Consequent upon, the appeals are allowed, and the appellants are acquitted of the charge. They be released forthwith, if not required in other custody case.

JUDGE

S.Ashfaq