1989 P Cr (PLP)

Accused Jamshaid has been challaned by S.H.O. Railway Police Station Bin Qasim, Karachi under section 4 of Explosive Substances Act.

2. Briefly stated the prosecution story is that on 5‑10‑1987 at about 2 a.m. A.S.M. Ishaq, who was on duty at reception yard, Bin Qasim, telephonically informed the Railway Police Station, Bin Qasim that TXR Jamshaid Ahmed, the present accused, had informed him on telephone that one bomb was lying in the Train Examiners Office in reception yard near the staircase. On such report, Head Constable Zulfiqar and Constable Muhammad Ashraf cordoned the area immediately. At 3‑30 a.m. Muhammad Aqil Shah, Bomb Disposal Platoon Commander went to the scene of offence and after defusing the so‑called bomb took it in his possession. At about 5 a.m. S.H.O. Nazir Hussam Bajwa reached the scene of offence and made enquiries from accused Jamshaid who showed the place where the bomb was seen by him lying under the staircase. He prepared Mashirnama and registered F.I.R. The report of Bomb Disposal Squad Platoon Commander was received which showed that it was a shell containing low explosive material. On 11‑10‑1987 S.H.O. Muhammad Asghar Railway Police Bin Qasim took up the investigation. On 24‑12‑1987 accused Jamshaid Ahmed and P.Ws. Nazakat and Khamiso attended the Railway Police Station, Bin Qasim and were examined by the S.H.O. For the first time Nazakat and Khamiso disclosed that they had seen the bomb in the hand of accused Jamshaid on that night immediately before the incident, who had brought it from the jungle from outside the office of the Train Examiners and had placed it under the staircase in presence of Nazakat and Khamiso and the accused had thereafter given telephonic massage to the Station Master. On the basis of these statements S.H.O. Muhammad Asghar arrested accused Jamshaid and after obtaining necessary sanction challaned him as shown above.

3. A charge was framed against the accused to which he pleaded not guilty and claimed to be tried. He has stated that he was on duty in Railway Marshalling Yard on the night of incident. While searching in for cotton-waste under the staircase to make fire and smoke to scare away the mosquitoes, he saw a bomb lying there. He informed the staff and other persons in the office and then telephoned the Station Master to send the Bomb Disposal Squad and police. The police came there and after some time instead of laying hand on the actual culprits falsely implicated and challaned him in the case.

4. The main point for determination in this case is: Whether the accused was found in possession and control of an explosive substance with intent, by means thereby, to endanger life or to cause serious injury to property in Pakistan? My finding on this point is in the negative for the following reasons.

5. During the course of trial the prosecution has examined P.W. Nazakat Hussain as Exh.2, who was working as a helper in the garage under the accused and P.W. Khamiso Khan who was an S.S. fitter under the accused as eye witnesses. Prosecution has also examined Pir Muhammad Khan Exh.4 Platoon Commander Bomb Disposal Squad, who had defused the bomb and inspected it and given the findings mentioned above. P.W. Nazir Hussain Bajwa Additional Sub‑Inspector Exh.5 who partly investigated the case in the beginning but could not detect the crime and P.W. S.H.O. Raja Muhammad Asghar who had investigated the case finally and challaned the accused.

6. The evidence in this case against the accused is only that of P.Ws. Nazakat and Khamiso. It is alleged by these witnesses that they had seen accused Jamshaid coming from Jungle from outside the office of Train Examiners with a bomb like object in his hand and on being questioned by them he told them that it was a bomb. Thereafter he placed it under the staircase and telephoned the Station Master. The evidence on the face of it appears to be absolutely absurd and unbelievable. If the accused had brought the bomb from the Jungle from outside the Train Examiners Office and had been detected and seen by P.Ws. Nazakat and Khamiso there was no reason for him to have kept it under the staircase and then telephoned the police. His natural conduct would have been to keep the bomb outside the office or at the most on the table of the office and to have stated that he had seen the bomb lying outside in the jungle and then he could have phoned the Station Master or police. Apart from that it is admitted by both these witnesses as well as Sub‑Inspector Nazir Hussain Bajwa that both Nazakat and Khamiso were present when the police reached the Train Examiners Office after the telephone: Both these P.Ws. also heard accused Jamshaid stating to I.O. that the bomb was seen by him lying under the staircase and was kept there by some unknown person. Still they did not disclose this fact to the police or to Sub‑Inspector Nazir Hussain Bajwa. On the contrary when Sub‑Inspector Nazir Hussain Bajwa had made oral enquiries from both these witnesses they had confirmed the statement of accused. Their allegation that they had informed TXR Islamuddin on the next day that accused Jamshaid had himself kept the bomb there is also unbelievable because the information according to their own statement was oral and was not in writing. Nothing could have prevented the witnesses from writing a letter to their higher officers or to the police if they had actually seen accused Jamshaid bringing the bomb inside the office. These witnesses were available to the S.H.O. Muhammad Asghar for all the time till 24‑12‑1987 and were also orally examined by him as he has claimed but they never told him that they had seen the bomb with accused Jamshaid, after such a long period and under such circumstances, cannot be believed by Judicial mind or even by a person who has got the least of common sense :fn his head.

7. The law as to the witnesses late appearance before the police is well -settled that it leaves no scope for believing P.Ws. Nazakat and Khamiso. In the case of Rullia Ram v. Crown a D.B. of Lahore High Court in A I R 1923 Lah. 438(2) held that when a witness keeps quiet for many days after the occurrence and conies forward after the police has made a discovery, he is not a reliable witnesses. In Sirajdin v. Kala reported in P L D 1964 SC 26, the Court rejected the evidence of the witnesses whose first appearance before the police was doubted and referred to the case of Sikandar Ali v. State reported in P L D 1963 SC

17. In Buddho v. State reported in P L D 1965 (W.P.) Kar. 76, a Division Bench of this Court ruled out of consideration the statement of an eye‑witness recorded only 4 days after the incident. I am, therefore, of the clear view that the evidence of P.Ws. Nazakat and Khamiso which was recorded by S.H.O. Raja Muhammad Asghar after more than one month of the incident, cannot be relied upon in the least and should be rejected outright. Both these P.Ws. Nazakat and Khamiso as well as accused Jamshaid were called as suspects by S.H.O. Raja Muhammad Asghar and their natural anxiety in these circumstances to save their own skin can be very well understood even if it was at the cost of implicating accused Jamshaid.

8. Apart from that the version of P.Ws. Nazakat Hussain and Khamiso before the first Investigating Officer Sub‑Inspector Nazir Hussain Bajwa as well, as before S.H.O. Raja Muhammad Asghar from 5‑10‑1987 upto 24‑12‑1987 was that they had not seen the accused bringing the so‑called bomb from outside the office of Train Examiners but had been informed by the accused that the bomb like object was lying under the staircase beneath the cotton waste and neither they had seen accused Jamshaid nor anybody else keeping the bomb under the staircase nor had accused seen or claimed to have seen anybody keeping the bomb under the staircase. It was for the first time after 24‑12‑1987 that P.Ws. Nazakat Hussain and Khamiso made an improvement on their earlier statement to the extent of complete somersault and claimed that they had seen accused Jamshaid bringing the bomb from jungle outside the Train Examiners Office and keeping it under the satircase. Such improvement and somersault by these two, prosecution witnesses, cannot be believed at all and has to be discarded from the evidence. I had an opportunity of watching the demeanour of these eye ‑witnesses as well as the S.H.O. Muhammad Asghar. I am fully satisfied that both these witnesses were telling a lie and that S.H.O. Muhammad Asghar was an officer, without any brain who decided to believe their evidence. It also appears to me that the Investigating Officer Muhammad Asghar has no conscience, in that when he could not detect the true and real culprits of the incident he decided to falsely implicate the first informant himself i.e. accused Jamshaid, in order to satisfy his superiors who must be pressing him to detect the crime.

9. Under the circumstances I hold accused Jamshaid to be not guilty and acquit him of the above charge. The accused is on bail. His bail bonds are discharged. M.Y.H./S‑320/K Accused acquitted.