MUHAMMAD ASGHAR alias PAPPU vs THE STATE
This criminal appeal challenges the conviction and sentence recorded by the Special Judge, Tank, on September 14, 1998, under the Explosive Substances Act, 1908. The appellant was convicted for the alleged possession of a hand grenade and four grams of Charas, resulting in a five-year rigorous imprisonment sentence and forfeiture of property. The core legal question before the Peshawar High Court was whether a conviction can be sustained when the prosecution fails to produce the alleged case property before the trial court. Upon review, the High Court observed that the prosecution failed to produce or exhibit the case property during the trial proceedings. The Court held that a conviction cannot be legally sustained in the absence of the production of the case property, as such an omission renders the trial court's judgment perverse and arbitrary. Consequently, the High Court set aside the conviction and sentence, ordering the immediate release of the appellant. The key principle laid down is that the production and exhibition of case property are essential prerequisites for a valid conviction in criminal trials.
- Can a conviction be sustained if the prosecution fails to produce the case property in court?
- Is a judgment that ignores the absence of case property considered perverse and arbitrary?
- Does the failure to exhibit case property vitiate a conviction under the Explosive Substances Act 1908?
- Section 173, Code of Criminal Procedure 1898
- Section 5, Explosive Substances Act 1908
- Section 5-A, Explosive Substances Act 1908
- Section 342, Code of Criminal Procedure 1898
' JAWAID NAWAZ KHAN GANDAPUR, J.--- The prosecution story as disclosed in the F.1.R. (Exh.P.A.), in brief, is that on 30-9-1996, the S.H.O. Muhammad lqbal Khan/complainant (P.W.2) was on "Ghasht" of the Illaqa, along with F.C. Mir Alam (P.W.1), F.C. Muhammad Younis (P.W.3), F.C. Akbar Zaman and F.C. Mohibullah (absconded P.W.), when they came across a person, riding on a bicycle and proceeding to Pai Amakhel Road. He was stopped. His search led to the recovery of one hand grenade and four grams of Charas. Since the appellant could not show that he was in lawful possession of the same, therefore, he was arrested and the articles were taken into possession by S.H.O. Concerned.
2. After the arrest of the appellant, the S.H.O. (P.W.2) drafted the Murasila (Exh.P.A./1) and sent the same to the police station through F.C. Akbar Zaman, for the registration of the case. The said S.H.O.
Also prepared recovery memo. (Exh.P.B.) vide: which he took into his possession the hand grenade and four grams of contraband Chars in the presence of its marginal witnesses. The S.H.O. Then sealed the hand grenade and the contraband Chars into two parcels vide memo.. (Exh.P.C.) and also prepared the site plan, Exh.P.D. He sent the hand grenade to the Bomb Disposal Expert, Peshawar and the Chars to the Chemical Examiner. The report submitted by the Bomb Disposal Expert was exhibited as Exh.P.E.
3. After the completion of the usual police investigation, complete challah under section 173, Cr.P.C.
Was submitted in the Court of Special Judge, Tank under section 5 of the Explosive Substances Act, 1908 against the appellant.
4. The prosecution, in order to establish its case, produced the following witnesses:--
(1) Muhammad lqbal Khan, S.H.O., Police Station Mulazai, Tank as P.W.2.
(2) Mir Alam F.C. No,177 of Police Station Mulazai, Tank (P.W.1).
(3) Muhammad Younus, F.C. The posted at. Police Station Mulazai, (P. W .3).
5. In his statement recorded under section 342, Cr.P.C. The appellant alleged false involvement/implication and claimed innocence. He questioned the validity of the P.Ws., all police officials.
6. The trial Court (Syed Rafique Hussain Shah) after recording the evidence of the prosecution, convicted the appellant and sentenced him to undergo five years' R.I., beside forfeiting his entire property in favors of the State under section 5-A of the said Act, vide his judgment/order, dated 14- 9-1998.
7. Aggrieved by the said judgment/order the appellant has challenged his conviction/sentence by filing this appeal.
8. We have heard Syed Zafar Abbas Zaidi, Advocate, the learned counsel for the appellant and Syed Saeed Hassan Sherazi, the learned Assistant Advocate-General for the State at length. We have also gone through the record of the case carefully.
9. It may be stated at the very outset that the judgment/order of the trial Court cannot hold ground because the case property, if any, was not produced/exhibited in the trial Court. We are, therefore, at a loss to understand as to how the learned lower Court had convicted the appellant without the case property having been produced/exhibited in the Court.
10. The impugned judgment of the lower Court is not only perverse but isle also arbitrary and cannot hold ground. The same is accordingly set aside.
11. The appeal is accepted and the impugned conviction/sentence recorded by the Special Judge on 14-9-1998 is set aside. The appellant shall be set free, forthwith, if not required in any other case.
Cited by 4 cases
- BASHIR AHMED and 2 others vs The STATE 2018 PLJ FSC 39, 2018 YLR 402
- SALAH-UD-DIN and another vs THE STATE and another 2005 MLD 371
- ABDUL MAJEED and another vs THE STATE 2004 MLD 568
- ABDUL WAHAB vs THE STATE 2001 MLD 1281