STATE through Advocate-General Khyber Pakhtunkhwa, Peshawar Versus SADAM

ABDUL LATIF KHAN, J.--- Through this single judgment we intend to dispose of instant Criminal Appeal filed against Saddam and Mehroban Shah and connected Cr. A No.489-P/13, filed against Wisal, as both the appeals are outcome of one and same FIR and have been preferred against the judgment dated 26.08.2013 passed by learned Judge, Anti Terrorism Court-III, Peshawar, whereby the respondents Saddam, Mehroban Shah and Wisal charged in case FIR No.77 dated 28.1.2013 under section 5, Exp: Sub: Act/7, A.T.A., P.S. Phandu, Peshawar, were acquitted of the charges leveled against them.

2. As per prosecution case, the local police on spy information about explosive material, raided the Godowns situated at Ring road Al-Sabah Market where huge quantity of explosive materials fully detailed in the murasila and recovery memo were found, for which B.D.S, personnel were called who checked the same. It was sealed into parcel Nos.1 to 10 for sending the same to B.D.U, for opinion. The respondents Wisal and Saddam present at the Godown were arrested who disclosed that the recovered articles are their joint ownership as well as Mehroban (appellant) and Mastan. Consequently a case vide FIR mentioned above was registered against all accused.

2(sic.) After completion of investigation complete challan against accused was submitted however being Juvenile the case of respondent Wisal was separated from the other accused under Juvenile Justice System Ordinance, 2000. At conclusion of trial, the learned trial Court through single judgment acquitted all the respondents from the charges leveled against them. Hence the instant Criminal appeal as well as connected Criminal appeal have been filed by the State through Advocate General KPK, Peshawar against the impugned judgment.

Arguments heard and record perused.

3. After hearing learned counsel for the parties and perusing the record with their able assistance, it is observed that considerations for interference in appeal against acquittal and in appeal against conviction are altogether different. A judgment of acquittal cannot be upset sparingly as the accused would enjoy double presumption of innocence, one relating to the pre-judgment stage, that every accused is innocent till proved otherwise and the other one, through a judicial verdict. Learned counsel for the appellant has failed to pinpoint any illegality, infirmity or improbability in the impugned judgment except for repeating the accusations, like it was so done by the prosecution witnesses in their testimonies. The Hon'ble Supreme Court of Pakistan in Sikandar Hayat's case reported as 1995 SCMR 616 formulated following points, holding them well settled principles to be kept in view while dealing with an appeal against acquittal:--

"(i) With the acquittal, the presumption of the innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;

(ii) Unless all the grounds on which the High Court had purposed to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to come to a different conclusion;

(iii) Unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;

(iv) Unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere, and

(v) The Supreme Court would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid miscarriage of justice and for no other purpose."

4. Following the aforesaid principles and yardstick, we have reappraised the evidence and events of this case, which lead us to believe that it is not a case requiring interference with the impugned judgment, which, to our considered view, appears to have been passed strictly in line with the settled principles of law. We do not feel impressed by the argument of learned counsel for the appellant, who, for most of the time, harped on the allegation that the respondents/accused committed the crime and the witnesses of ocular account remained present at the spot at the relevant time of occurrence. The learned trial Judge disbelieved the ocular version furnished by Umar Sher SI (PW.4) and Shah Nawaz FC (PW.5) by holding that they were not only found contradicting each other on material facts but also found at variance about places of recovery as it so flowed from their testimonies. As per assertion of PW.4 the recovery was effected from various places/godowns without specifying the nature of recovery from each godown which were six in number and also admitted that he cannot specify as to what recovery was effected from which godown. He also admitted that respondents were only sitting in a room from where no recovery was effected whereas PW.5 denied the suggestion put by defence regarding no recovery from the shop wherefrom respondents were arrested. As per PW.4, he sealed the recovered explosive material into parcels and prepared the recovery memo Ex.PW.4/1 in his presence whereas PW.5 deposed that the same were sealed by I.O who also prepared the recovery memo which belied the version of PW.4. Similarly as per assertion of PW.4 the recovery was effected from various places/godowns whereas according to PW.5, the recovery was effected from different Godowns as well as from open area covered by barbed wire hidden in the ground. No statement has been recorded regarding identifying of owner of each godown. As per above witnesses there were 34 Godowns in the premises out of which six were rented out to respondent Mehroban Shah but as per assertion of PW.6, Chowkidar of the premises, there are sixty shops whereas PW.7 Roman owner of the premises deposed that there are 65 shops out of which six shops are rented out to the respondent Mehruban. The record is silent as to whether the recovery was effected from the six Godowns rented to the respondent or Godowns rented out to other peoples. The owner of Godown (PW.7) has also not specified as to which Godowns were rented out to the respondent nor the I.O as well Seizing Officer have mentioned this fact that how they identified the Godown being rented out to respondent from which recovery was effected though it was admitted by PW.4 that the respondents were arrested from a vacant room from where no recovery has been effected showing that no recovery has been effected from immediate possession of respondents or at their instance which makes the whole proceedings of recovery doubtful.

5. The record is silent about any search warrant obtained from the competent Court for conducting raid on the premises. No independent witness i.e., Nazim or elder of the locality has been associated during raid which is clear violation of section 103, Cr.P.C. Though PW.3 Afsar Khan Chowkidar was produced before Court but he was admittedly not present on the spot at relevant time nor deposed against the respondents about their involvement in such like business of explosive etc.

6. It is also pertinent to mention that live rounds of different bore were allegedly recovered on 28.1.2013 which were sent on 31.1.2013 after delay of 3 days to the Fire Arms Expert but surprisingly it were received in the FSL on 6.2.2013 after delay of 9 days for which no explanation has been offered by the prosecution as to in whose safe custody the same were lying during this period and why it were sent so late. Besides, record is also silent about examination of concerned official in whose custody it were lying during that period. The assertion of PW.8 (Investigation Officer) regarding sending of recovered cartridges to BDS expert for examination is also harming the prosecution case as examination of cartridges and other arms and ammunitions are not the job of B.D.U, rather it is the job of Armourer/Fire Arms Expert to examine the same whose report Ex.PW.8/4 is available on file but the same was belied by PW.8, deposing that the report of B.D.S. regarding examination of cartridges is Ex.PW.8/4, which shatters credibility of the report as well as recovery of rounds etc.

7. Likewise the explosive materials were recovered on 28.1.2013 but these were examined in the B.D.U, on 7.3.2013 after about two months though it has been mentioned in the said report that these are alive and dangerous, therefore handle with care and recommended for early destruction. So if these explosives were so dangerous then why it were sent so late after delay of more than two months and in whose custody these were lying during this period which is mystery as no statement to this effect of concerned official has been brought on record to explain the situation. Furthermore, the person (Khan Zada ASI of Bomb Disposal Squad) who examined the explosive material has also not been examined by the prosecution who could better explain actual date of receiving of the same as well examination of the same which creates the prosecution case doubtful as the relevant portion/place of date of its receiving is left blank for the reasons best known to the B.D.U, personnel. Besides the B.D.S, personnel who checked the same on the spot have also not been examined by the I.O, nor their names are mentioned in the list of witnesses.

8. All of these factors were lawfully and consciously considered by the learned trial Court before formulating an opinion of innocence in favour of the accused, which, to our considered view, is not open to any exception. The reasons recorded by the learned trial Court for the acquittal of the respondents are in line with the evidence on record and circumstances mentioned therein, as it was unsafe to act upon the evidence of prosecution witnesses. The infirmities and flaws pointed out in the impugned judgment assumed importance, when taken into consideration, in the backdrop of prevalent circumstances, which give rise to only one irresistible conclusion that innocence of the respondents was the only result which could be inferred and arrived at by the learned trial Court. The principles for setting aside such a judgment have been laid down in the case of Noora and another v. The State (PLD 1973 SC 469) in the following words:-

"As an ultimate Court, we must give due weight and consideration to the opinions of the Courts below, and normally we should not interfere with their findings where we are satisfied that they are reasonable and were not arrived at by the disregard of any accepted principle regarding the appreciation of evidence. The mere fact that this Court might have taken a different view of the evidence should not be sufficient to overrule the findings of the Courts below; but we should first satisfy ourselves that there is some serious defect in the process by which the finding has been arrived at. Where such defect is discovered and the finding is not considered tenable, then it should be open to the Court to come to its own independent finding upon a re-examination of the evidence untrammeled by the opinions of the Courts below."

9. We find no defect in the reasoning, recorded by the learned trial Court, as it appears to have acted strictly in accordance with law and principles governing the safe administration of criminal justice. The reasons, whereon acquittal of the respondents is based on, are neither artificial nor ridiculous.

10. For the aforesaid reasons, there exists no such compelling reason, which may necessitate interference with the well-reasoned judgment of acquittal. Therefore, we dismiss this appeal along with connected Criminal Appeal No.489-P/13, filed against respondent Wisal.

HBT/61/P Appeal dismissed.