MULA UDDIN Versus State
SYED ARSHAD ALI, J.--- Through this single judgment we intend to dispose of Criminal Appeal No.37-A/2016 filed by Mula ud Din and another, Criminal Appeal No.38-A/2016 filed by Abdul Salam, Criminal Appeals Nos.50-A/2016 and 53-A/2016 filed by the State, as all the appeals are the outcome of one and the same Judgment dated 12.03.2016 recorded by learned Judge Anti-Terrorism Court, Hazara Division Abbottabad. Through the impugned judgment and sentence the appellants in Appeals Nos. 37-A/16 and 38-A/16 have been convicted and sentenced as under: i) Accused Mula ud Din is convicted under section 5 ESA and sentenced to five years' R.I., accused Abdul Salam is sentenced to six months' R.I and Isam Khan sentenced to three years' R.I. ii) Accused Mula ud Din is further convicted under section 353, P.P.C. and sentenced to one year.
All the sentences shall run concurrently. However, benefit of section 382-B, Cr.P.C. was extended to the appellant/ convict.
2. The prosecution case as reflected from the record is that on 12.07.2015 complainant Raziq Khan, S.H.O. was on routine patrolling duty along with other police officials near Trace Banda when an informer informed them that a motorcar bearing No. PSLMS/UI Shangla, Silver colour in which Abdul Salam, Mula ud Din and Asadullah alias Imtiaz resident of Tangir are transporting arms and ammunitions for the purpose of terrorism. On the said information they made barricade on Matta Band check post. At about 02:00 a.m. a motorcar in which the accused were allegedly boarded reached the check post. The police signaled the car to stop but persons sitting in the motorcar, when saw the police party, opened firing upon them. The police also started firing upon them, however, the accused managed to escape and left the motorcar at the place of occurrence. Upon searching the trunk of the motorcar, one rifle RPG-7 bearing No.1601560 along with 06 rocket and 06 fuse were recovered. Similarly, from the dashboard of the motorcar a stamped paper, copy of registration book of the motor car, documents, two mobiles containing SIMs i.e. S.Com and Telenor, one telephone diary along with copy of CNIC of Saadullah and Muhammad Usman were also recovered. The police registered case FIR No.10 dated 12.07.2015 under Sections 324/353/34, P.P.C., Sections 4/5 ESA, Sections 6/7 ATA, Section 15 AA of KPK at Police Station CTD, Hazara Region, Abbottabad against the accused.
3. Investigation of the case was handed over to Hamayun Khan, Inspector CTD, PW-7. On 16.07.2015 the complainant arrested accused Mula ud Din and Abdul Salam whereas accused Isam Khan, who allegedly sold the weapon to accused Mula ud Din, was arrested on 22.07.2016. On 25.7.2015, during the investigation of the case, the investigation officer produced Musharaf Din, PW-4, for recording his statement under section 164, Cr.P.C. He has narrated in his statement that he is plying a Jeep for the purpose of rent from Palas to Pattan. On 11.07.2015 he took accused Mula ud Din and Asadullah (whose names were latter known to him) to Pattan in his Jeep.
4. After the completion of investigation, challan was submitted against the accused. The accused were summoned and after providing relevant copies under section 265-C, Cr.P.C., charge was framed against them, to which they did not plead guilty and claimed trial, however due to the demise of accused Asadullah, prior to filing of challan, proceedings against him were abated. The prosecution in order to prove guilt of the accused, produced and examined seven (07) witnesses. After the closure of the prosecution evidence, statements of accused were recorded under Section 342, Cr.P.C., wherein they professed innocence and did not opt to produce defence evidence or to be examined on oath under Section 340(2), Cr.P.C. Learned trial Court after hearing arguments of learned counsel for the parties, vide impugned judgment dated 12.03.2016 sentenced the present appellants as mentioned above. We also noted that on 27.10.2015 the learned trial Court recorded the statement of accused Abdul Salam, wherein he stated that the accused Mula ud Din and Asadullah hired his car on rent of Rs.7000/- for taking them to Tangir. On the way they were stopped by police at Matta Banda. Accused Mula ud Din and Asadullah forced him to keep on driving the car, however, he had to stop the car and made good his escape.
5. Learned counsel appearing on behalf of the appellants has argued that the prosecution has failed to produce any cogent evidence to bring home charge against the appellants, the contents of FIR is not supported by the site plan, although joint investigation team was constituted but no efforts have been made by the joint investigation team to trace the ownership and call data regarding the mobile and the SIMs recovered from the vehicle. She further argued that indeed this was a case of no evidence and Musharaf Din PW was introduced to strengthen the prosecution case, however, if his statement is perused the same is full of contradiction and gives an impression that the prosecution has tutored and planted him to strengthen its case.
6. On the other hand, learned Assistant Advocate General while controverting the arguments of the learned counsel for appellants has argued that the prosecution has established the case beyond reasonable doubt. The nexus of the appellants have been successfully established with the recovered arms and ammunitions. He further stated that Musharaf Din PW is a private and independent witness, hence, no mala fide can be attributed to him.
7. Arguments heard and record perused.
8. The prosecution case mainly hinges on the evidence of PW Musharaf Din. As per record PW Musharaf Din recorded his statement on 25.7.2015, 09 days after the arrest of appellants. The question that how Musharaf Din was associated with the investigation and why his statement was recorded on 25.7.2015 after delay of 9 days is the questions which remained un-answered before the trial Court and investigation. Since PW Musharaf Din is a material witness, hence his testimony has to be viewed in the primes of guidelines settled by the superior Court for appreciating evidence. The close perusal of his first statement recorded under section 164, Cr.P.C. would suggest that he took Mulla ud Din and Asadullah, accused, in his Jeep to Pattan a day prior to the eventful day of occurrence. The accused were not earlier known to him. His this statement, if assumed to be correct, even then does not connect the appellants with the incident as narrated in the FIR. He only refers to the event of a day prior to the incident. Even the said Musharaf Din in his statement under section 164, Cr.P.C. did not give any description of the accused. He did not mention anything about the age, height or the language being spoken by the persons who boarded in his Jeep. While appearing as PW in the present case, he in cross-examination has admitted that he did not remember that who told him the names of accused Mula ud Din and Asadullah. He further confirmed that the same might have been provided to him by SHO. Non-holding of an identification of accused by PW Musharaf through the process of identification parade casts serious doubts in the case of prosecution. In such situation it was incumbent upon the prosecution to have conducted an identification parade of the accused under the supervision of Judicial Magistrate at least to have establish the presence of accused Asadullah and Mula ud Din one day prior in Palas. As per statement of Muhammad Raziq Khan PW-2 he received spy information wherein the names of accused, who would transport arms ammunitions in a non-custom vehicle bearing registration No. PSLMS/UI, were disclosed to him just half an hour before the alleged time of intercepting the said vehicle. The most important aspect of the case is the _identity of the accused Mula ud Din, Asadullah and Abdul Salam as the accused, who were carrying arms and ammunitions on the eventful day. Perusal of site plan, Ex. PW 7/1, would exhibit that the investigation officer has given specific place/point to Mula ud Din and Asadullah. However, neither in FIR nor Muhammad Raziq Khan S.I. and Abdul Wahab S.I. in their statements have uttered a single word about the identity of the aforesaid accused. They do not say that the accused were known to them prior to the day of occurrence which raises the question as to how did they provide them places of presence in the site plan. Hence, in order to strengthen the prosecution case against the appellants, who were arrested on 16.7.2016, and having no evidence against them except the spy information, the possibility of planting Musharaf Din cannot be ruled out as his association with the investigation at such a belated stage in an unanswered query also creates doubt in the prosecution case.
9. Now, moving to the case of Isam Khan, the only evidence disclosed by the investigating officer against him is that accused Mula ud Din, while in custody, had disclosed his name to have purchased rocket launcher from. Other than the alleged statement of co-accused there is no evidence against Isam Khan. The prosecution has not bothered to investigate as to whether Isam Khan was involved in such like business or not.
10. Lastly, coming to the statement of Abdul Salam recorded before the trial Court. In the said statement he has stated that:-
"I am driver of Taxi vehicle No.PS-LMS-U1. I drive the taxi on the local route. Five days prior to the occurrence two persons who were then not known to me but later it came to know them as Mulah-ud-Din and Asad Ullah took my car on payment of Rs.5000/-. They again after about five days on 11/07/2015 came to me and again asked me to give them my car for going to Tangeer from Pattan. We struck the bargain for Rs.7000/- and I told them that I shall take them myself. From Pattan they loaded some bag wrapped in a blanket which was put in the trunk of the car and we started our return journey. On the way we were stopped by the police at Maki Banda but Mulah-ud-Din and Asad Ullah forced me to continue but then exchange of gun fire started taking place and I went in the vehicle and ran away. I returned to my village from where I was later arrested. I did not know that the accused were carrying any contraband."
The said statement was recorded on 27.10.015 by the learned trial Court much before the framing of charge against him. From such statement it does not appear that the learned trial Court has made any effort that the accused was made to understand the meaning and consequences of his statement. Even the certificate at the bottom of the statement does not mention that the said statement was recorded in the presence of Presiding Officer, the accused was made to understand the consequences of his statement or whether the accused could read and understand the said statement. Since at the relevant time the accused was not represented by his learned counsel, hence the Presiding Officer was required to have ensured that his statement was voluntary and the accused understood the consequences of the statement. The mode and manner in which this alleged statement has been recorded is completely alien to the Criminal Procedure Code. This statement is neither recorded during the investigation of the case nor after the commencement of the trial. Hence, this statement is not of least value. Even otherwise, subsequent to the said statement at the time of framing charge the accused denied the allegation. Therefore, this statement does not fulfill the mandatory legal and factual attributes of Section 364, Cr.P.C. and is not corroborated by any circumstantial evidence, except the conjectural story of prosecution.
11. The upshot of the discussion is that the entire case of prosecution is based on conjectural story and has not been established through confidence inspiring evidence. The requirement of the criminal case is that prosecution is duty bound to prove its case beyond any reasonable doubt and if any single and slightest doubt appears in the prosecution case then the benefit of the same must go to the accused which would be sufficient to discredit the prosecution story and entitle the accused for acquittal. It is a well embedded principle of criminal justice that there is no legal requirement that multiple doubts/infirmities must exist in the prosecution case entitling the accused for acquittal, rather any reasonable doubt arising out of the prosecution evidence, attracting the judicial mind is sufficient for acquittal of the accused. In case titled Tariq Pervez v. The State (1995 SCMR 1345) the august Supreme Court was pleased to rule that for giving the benefit of doubt, it is not necessary that there should be many circumstances creating doubt. If there is a circumstance which creates reasonable doubt in a prudent mind about the guilt of the accused then the accused would be entitled to the benefit of doubt not as a matter of grace or concession but as a matter of right. The same principle was reiterated by the apex Court in case titled Muhammad Akram v. The State (2009 SCMR 230) and it was observed that it is an axiomatic principle of law that in case of doubt, the benefit thereof must occur in favour of the accused as a matter of right and not of grace. The above principles laid down by the apex Court are fully in consonance with a famous maxim that "It is better that ten guilty persons be acquitted rather than one innocent person be convicted". Moreover, accused is always considered as the most favourite child of law and every benefit of doubt goes to him regardless of fact whether he has taken any such plea or not. Reliance placed on case titled Faryad Ali v. State (2008 SCMR 1086).
12. For what has been discussed above, the prosecution had failed to prove its case against the appellants beyond reasonable doubt. These Appeals Nos. 37-A/2016 and 38-A/2016 are, therefore, allowed, the conviction and sentence of the appellants are set-aside and they are acquitted of the charges by extending benefit of doubt to them. They shall be released from jail forthwith if not required or detained in connection with any other case. Resultantly, Criminal Appeals Nos. 50-A/ 2016 and 53-A /2016 filed by State are dismissed. File be consigned to record room after completion.
13. Above are the detailed reasons of our short order of even date.
JK/318/P Appeals allowed.