2002 PLP 1726 (YLR)

12. P.W.1 Shamsher stated that on 23‑10‑1998 he was traveling by a bus bound for Sialkot and when they were passing through the area of Rakh Marakiwal, there was a huge blast in the bus which resulted in injuries to ten passengers and he was also one of the injured and since then he has been suffering from the after effects of the said explosion as there are still splinters of the bomb in his body's tissues. He stated that as a result of the said explosion the bus was damaged and it caught fire and struck against a tree.

13. P.W.2 Muhammad Fayyaz who was another passenger on the bus deposed similarly. He stated that the explosion had resulted in injuries to many persons including himself and that the bus after getting fire went out of control and struck against a tree. He had suffered serious injuries and remained admitted in Mayo Hospital, Lahore for 18 days and then had been taking medical treatment at home for about three months.

14. P.W.3 is Muhammad Iqbal who deposed that on 23‑4‑1998 he was traveling by the bus which had exploded due to a bomb explosion and that besides himself, 10 other persons had suffered serious injuries.

15. P.W.5 Dilawar Hussain, the complainant who deposed that on 23‑4‑1998 around 10‑30 a.m., he alongwith his wife Mst. Rashida Bibi boarded a Sialkot bound bus from the bus stop of his village and that there were already 40/45 passengers in the said Bus No.LHE‑1098. When the said bus reached near Rakh Marakiwal around 11‑30 a.m. an explosion' took place in the rear part of the bus and which caught fire and the bus struck against a tree. Many persons including himself, his wife Mst. Rashida Bibi suffered injuries and ultimately the leg of his wife had to be amputated. Besides himself and his wife, ten other passengers had also suffered injuries in the said occurrence. He deposed that the Inspector/S.H.O. reached the place of occurrence and recorded his statement Exh.P.D. and that he had thumb‑marked the same as a token of its correctness.

16. On the conclusion of the prosecution evidence, the learned trial Court recorded the statements of the accused under section 342, Cr.P.C. Both of them denied all the incriminating circumstances. In answer to Question No.5, Manzoor Hussain, accused claimed that he had never been produced before a Magistrate. In answer to Question No.7 which related to the thumb‑impression on Exh. P.R., he stated that the police officials had been obtaining his thumb impressions under coercion and that he did not know if the aforesaid thumb‑impressions were his or not. In answer to Question he stated that the Magistrate recorded his confessional statement nor it was read out to him and nor his thumb impressions had been obtained by him. In answer to Question No.9 as to why this case against him and why the P. Ws. had deposed against him, he deposed that he and his co accused were labourers and were stitching foot balls on daily wages basis and that they worked for a well‑known foot ball maker, of Sialkot. He stated that the Sub Inspector/S.H.O., who used to take refreshments from a nearby stall of tea of their village, used to take foot balls from them for his children, free of cost. A few days prior to 15‑4‑2000 the S.H.O. demanded from him some more foot balls but he declined and the S.H.O. took it ill. On 16‑4‑2000, he alongwith his co‑accused was sitting in the company of his co‑villagers when the said S.H.O. arrived there in a vehicle and took certain drinks. Before his arrival they were already discussing his conduct and then an argument developed between him, his co‑accused Mukhtar Ahmed and the said co‑villagers on one side and the S.H.O. on the other side in which it was alleged by them that the said S.H.O. on receipt of huge amount of bribe from Boota Ram had got him discharged from the present case and they had also branded the said S.H.O; as a traitor. The said S.H.O. then reacted and started abusing them and they also paid him in the same coin. Thereupon he threatened them that he would soon teach them a lesson and would involve them in a serious case and thereafter he falsely involved them in this case. He stated that he will produce evidence in defence and will also make statement on oath under section 340(2), Cr.P.C.

17. In his statement under section 342, Cr.P.C. Mukhtar Ahmed, deposed on similar lines as his co‑accused Manzoor Hussain. In answer to Question No.9 as to why this case against him and why the P.Ws. had deposed against him, he narrated the same story as was narrated by his co‑accused. However, he stated that he will produce evidence in defence and will also make statement under section 340(2), Cr.P.C.

18. After the conclusion of the defence evidence, the learned trial Court convicted both the accused in this case. Manzoor Hussain, accused was convicted under section 109, P.P.C. read with section 7(i) clause (b) of Anti‑Terrorism Act, 1997 and was sentenced to imprisonment for life and also to pay a fine of Rs.50,000 and in default to undergo R.I. for a period of two years. He was also convicted under section 109, P.P.C. read with section 3 of the Explosive Substances Act and was sentenced to death.

19. Mukhtar Ahmed, accused was convicted under section 7(i) clause (b) of the Anti‑Terrorism Act, 1997 and was sentenced to imprisonment for life and to pay a fine of Rs.50,000 and in case of default of payment of tine to undergo R.I. for a period of two years. He was also convicted under section 3 of the Explosive Substances Act, 1908 and was sentenced to death.

20. Both the accused have filed separate appeals against the said judgment, of the learned trial Court dated 23‑1‑2001. A reference has also been sent by the learned trial Judge for confirmation of the sentence of death awarded to both the accused/appellants.

21. In this case, not a single witness has been cited by the prosecution who might have seen the accused in or around the ill‑fated bus on 'the day of occurrence. In fact it 'is not the case of the prosecution that any witness had seen Mukhtar Ahmed, accused/appellant planting the bomb in the bus. There‑is also no witness who might have deposed regarding the alleged abetment on the part of Manzoor Hussain, accused. Even the learned trial Court, in the impugned judgment, had observed as following: "I also hold that the statements of Muhammad Iqbal, S.‑I. P.W.4,. Muhammad Rafique A.S.‑I. P.W.6, Muhammad Nawaz S.‑I./S.H.O. P.W.7, wherein the said witnesses have deposed that the accused persons while in custody had disclosed before them that they had acted under the instructions of the Indian Agents and for a consideration of Rs.10.000 they had planted the bomb in the bus, the said portion of their deposition is hit by Article 38 of the Qanun‑e‑Shahadat and so the same cannot be read in evidence. As regards their evidence regarding the recovery of Chit Exh. P.B., on the pointing out of Manzoor Hussain accused from his house, I hold that the said recovery has been proved beyond doubt but at the same time I find that the said Chit is of no avail to the, prosecution and there is no indication or proof that the said Chit had been delivered to Manzoor Hussain by some Indian Agents so the said chit may not be discussed any further." Further, in the impugned judgment, the learned trial Judge observed as following:‑‑ ... I reached a safe conclusion that there remains only one issue between the defence and the prosecution and that is the judicial confession made by Manzoor Hussain and Mukhtar Ahmed accused before Muhammad Zahid Akram, Magistrate 1st Class, Sialkot P.W.8 and that the fate‑of this case depends on the evaluation of the judicial confession ...."

22. It is thus obvious that in this case the only evidence the prosecution is banking upon is the confessional statements of the accused recorded by the Illaqa Magistrate (P.W.8). Exh.P.B. was also seen by us, but it provides no nexus with the occurrence or planting of explosive substances in the bus. It also does not provide any other, clue pertaining to the occurrence and appears to have been fabricated rather crudely by the Investigating Officer.

23. Regarding the confessional statements of the appellants, it is an admitted fact that both the appellants had, been produced before the Magistrate, by the police directly, from the police custody. This was in deviation of the normal course of sending a detainee to the judicial lock‑up and recalling him back for recording of the confessional statement after lapse of some, time. The confessional statements are, therefore, of no evidentiary value and cannot be taken into consideration.

24. According to the Investigating Officer he got a tip from Muhammad Iqbal and Zafar P.Ws. and where after he proceeded against the appellants. However, when Muhammad Iqbal (P.W.3) appeared before the trial Court, he did not say a word about having passed a tip to the S.‑I. This was obviously a ease of retracted confession and the confessional statement could not have been relied upon by the treat Court when there was no corroborative piece of evidence. The Investigating Officer appears to be a very callous person who was totally inexperienced in the art of investigation. Once more referring to the trial Court it, can be said that the learned trial Court also did that care to weigh all the pieces of evidence properly, and awarded death sentence to two persons in a perfunctory manner.

25. In view of what has been discussed above, the conviction recorded by the learned trial Court against both the accused/appellants on all the charges in this case cannot be legally sustained and is liable to be set aside.

26. As the charges against both the accused/appellants are not proved beyond reasonable doubt, we acquit them of all the charges and set aside the conviction recorded as well as the sentences‑; awarded by the learned trial Court. Both the appeals (Criminal Appeal No.49/J of 2001 and Criminal Appeal No.50/J of 2001) are accordingly accepted.

27. If not required in connection with any other case the appellants be set at liberty forthwith. The sentence of death awarded to Manzoor Hussain and Mukhtar Ahmed, accused/appellants by the learned Trial Court is not confirmed.

28. Murder Reference No.14/T of 2000 is accordingly answered in the negative. Appeals accepted. N.H.Q. /M‑1257/L