P L D 1978 Peshawar 116 (PLP)

USMAN ALI SHAH, J. - In this appeal accused Khaista Muhammad has questioned the legality of the judgment dated 11-2-1975 of a learned Judge, Special Court, N: W. F. P.. Peshawar, by which he found the accused guilty of an offence under section 4 of the Explosive Substances Act, 1908, and sentenced hint to R. I. for seven years and a fine of Re. 3,000 or in default further R. I. for 18 months. Briefly, the prosecution story is that on 22-8-1974, accused Khaista Muhammad was passing in front of the Hujra of Malik Jehanzeb (P. W. 5) in village Tormung, Tehsil and District Dir. Malik Jehanzeb at that time was standing in front of the Hujra. The convict greeted him. Thinking that the accused was a stranger, Malik Jehanzeb invited him to lunch and took him to his lungral (guest house). On the request of the stranger, Malik Jehanzeb Khan directed Noor Muhammad, a menial of the village to guide the accused to S Nat. The accused had a bundle with him. Noon Muhammad took the same and accompanied the accused. The accused had another small parcel contained in white banyan which he forgot while leaving the Hujra of Malik Jehanzeb Khan. Malik Jehanzeb Khan opened the said parcel and found in it detonators. Shore while later, the accused came back telling that he had left something behind. Malik Jehanzeb Khan delivered the same to him but did not give him an impression that he had seen the contents in the parcel. Thereafter, Malik Jehanzeb Khan began suspecting that the big bundle with the accused might as well have in it similar explosive articles. Consequently, he along with his nephew left for Darra rormung distant 6/7 miles from his village in order to apprehend the accused and search his person. He took a different path as against the one taken by the accused. On reaching village Gaunt, he informed his first cousin P. W. Badahah Khan about his mission. Badahah Khan related it to Aminul Haq. As darkness of the night had by then set in, it was thought that the accused might leave stayed for the night in that village. Therefore, it was planned that the amused would be hauled up the morning of next day. Next morning, P. W. Badshah Khan and Aminul Haq went to Bagh Kunda distant 3 furlongs from the village where they saw the accused m the company of Nook Muhammad. Badshah Khan and Aminul Haq apprehended the accused with the bundle and brought him to village Gauni and confined him in the Hujra of Malik Yar Muhammad Khan, the uncle of Malik Jehanzeb Khan. On opening the bundle, it was found that it contained articles meant for explosion. On 24-8-1974, Akbar Amen Khan S. I., Dir was directed on telephone by S. P. Taimargarh to wait for the D. S. P. and on reaching the telephone exchange found him arrived is a jeep in which they proceeded to Tormung where they took along with them Malik Haroon and drove up to Sairkilli and from there onward walked to village Gauni where they formally arrested the appellant in the Hajra of Yar Muhammad Khan. In as almirah of the Hujra were found lying 15 pieces of plastic explosive (Exh. P. 2), 3 ignitor percussions (Exh. P. 7) with three detonators with attached percussions (Exh. P. 8), 13 feet of safety fuse (Exh. P. 6) and 15 detonators P.W./SI Akbar Aman Khan took the same into possession, vide memo. Exh. P. C. He then sent the marasila (Exh. PA/1) to P. S. Dir where F. I. R. (Exh. PA) tints recorded. The I. O. then prepared the site plan (Exh. PB/1-2) at the instance of Badshah Khan and Aminul Haq with its drawings and notes in his handwriting. It may here be noted that P. W.. Badshah Khan and Aminul Hag bad also recovered a Mauzer Pistol (Exh. P. 3) and some cartridges (Exh. P. 4) from accused Khaista Muhammad but the same were not produced before the Police at the time of the arrest of the accused. The explanation In this respect furnished by the prosecution is that P. W. Malik lehanaeb Khan wanted to produce the same before the Police himself. The accused remained in the custody of Police from 23-8-1974 uptil 9-9-1974 when he is alleged to have made before Mr. Taj Muhammad Khan, District Magistrate, Dir the confessional statement (Exh. P. W. 3/1) in which he admitted that the explosive articles in question were recovered from his possession by P. W. Badahah Khan and Aminul Haq. He also admitted that he had undergone trainiog in Afghanistan in explosions and that the explosive articles in question with one German-made-pistol and 15 cartridges had been entrusted to him by Hidayatullah (absconder) and that on return he had taken permission from Ajmal Khattak (absconder) and thereafter left for his country via Jalalabad. At the trial Court, he retracted the confessional statement saying that he had never made any such statement and that it was under duress that he was obliged to put his signature on the alleged confessional statement (Exh. P. W. 3/1). He admitted that he had a lunch with P. W. Malik Jehanseb Khan on 22-8-1974 in his Hujra. However, he stated :- I was coming from Chitral after the tale-end of my leave and was passing through Tormung just per chance when I had my meals with P. W. Malik Jehanzeb and thereafter I was going on the usual way to my village in Swat, when on 23-8-1974 I was arrested by some persons of village Gauni at a distance of 4 furlongs from village Gauni at the instance of Malik Jehanzob. He further stated that while on his way to Swat, two persons apprehended him and took him from place to place in the course of which they subjected him to beating and also robbed him of his pistol (Exh. P. 3) with 30 cartridges and consequently he was confined in the Hujra of Malik Yas Muhammad Khan and on 24-8-1974 handed over to the Police. He denied before the Police that the explosive articles were recovered from his possession Rather he had made a complaint before the Police that he was robbed of his pistol, money and wearing clothes. In view of these salient features of the matter, it will be seen that the prosecution case is mainly founded on the role played by Malik Jehanzeb Khan (P. W. 5). As such, his evidence will be of primary importance for scrutiny in determining the guilt or otherwise innocence of the accused. In so far as his statement that he had hosted lunch to the accused is concerned, it is not denied by the latter. The accused also does not deny that at the behest of Malik Jehanzeb Khan, Noor Muhammad (not produced) had accompanied him in order to guide him on his way to Swat through Tormung valley. He, however, denied the possession of explosive articles. The allegation of Malik Jehanzeb Khan is that while leaving the Hujra, the accused had left behind a small bundle and it was taken by him later. Now Noor Muhammad was abandoned at the trial, but his statement recorded under section 164, Cr. P. C. is forthcoming on the record of this case. A look at the said statement will show that Noor Muhammad has not stated, even by indication muchless in clear terms, that the accused had come back to the hujra of Malik Jehanzeb Khan after his departure so as to collect these articles. It would thus be clear that the prosecution has missed an important link which necessarily reflects on the statement of P. W. Malik Jehanzeb Khan whose anxiety to grab the pistol is palpable from the record. Therefore, the foisting of the incriminating articles on the accused with a view to achieving his object cannot be ruled out of consideration. His chasing the accused by adopting a different course and then deputing others for his apprehension is a conduct not free from suspicion. May be, he has introduced this story for robbing the accused of his pistol in which his interest is self-evident. P. W. Malik Jehanzeb Khan has further stated that when he opened the parcel left by the accused in his Hujra, he found in it some explosive articles and that some time later, the accused returned to the Hujra where the parcel was given to him without giving him an idea that it had been seen by the witness. However, later he began suspecting that the big bundle that the accused was carrying would also contain explosive things in view of which he formed the opinion that the accused was a terrorist. Upon this, he went out in search of the accused in order to apprehend him. Now on his even showing. P. W. Malk Jehanzeb Khan is a political figure and keeps himself abreast of the developments in the country. In this respect, this is what he has stated: - "I belong to N. A. P. But when these subversive activities started and P. P. P. started blaming N. A. P. for the same and vice versa, then I left all interest in party politics and although I have not so far declared my dissociation with NAP, yet practically I do not take any part in politics: In view of this statement of P. W. Malik Jehanzeb Khan, it does not stand to reason that having found the explosive substances in parcel, he would be, unable to form a spontaneous idea that the accused was a terrorist carrying the explosive substances for subversive purposes, for it is his statement that he was fully conscious of the fact that subversive activities were in full swing in this part of the country. Thus his statement that after he handed over the parcel to the accused, he began suspecting that the accused was a terrorist would appear to be nothing else than nonsense which must be viewed with impunity. Had the accused really come back to his Hujra for taking the alleged parcel, surely he would have apprehen ded him there and then. We have therefore, come to the conclusion that the accused had never come back to his Hujra after he took leave from P. W. Malik Jehanzeb Khan. As indicated above, the accused had a German made-pistol with him. In the circumstances, an adverse inference can be drawn against P. W. Malik Jehanzeb Khan that he wanted to rob him of that pistol. He, however, could not take any such step in his Hujra or in the locality of his village obviously for the reason that he would have committed a criminal offence in the presence of witnesses and also that it would have entailed him disgrace. In the implementation of his design. however, he did not remain passive and pursued the accused. It is a matter of record that the accused spent the night at village Gauni in the Hujra of Jan Badshah, the brother of P. W. Malik Jehanzeb. It is also a matter of record that while is pursuit of the accused, P. W. Malik lehanzeb had also reached village Gauni. He, however, did not spend the night in the Hujra of his brother -Jan Badahah but spent it in the Hujra of one Fateh Amin Khan. A question arises as to why he did not spend the night in the Hujra of his brother Jan Badshah7 The answer to this question would evidently be that he wanted to conceal his identity from the accused, so that when he is robbed of the pistol and other belongings, it should not be known to him that P. W. Malik Jehanzeb Khan had a hand in the matter. For the purpose of robbing the accused of the Pistol and other belongings Malik Jehanzeb, therefore, appointed P. W. Badshah Khan and Aminul Haq and kept himself in the background. It may here be noted that P. W. Badshah Khan is the cousin of P. W. Malik Jehanze Khan and Aminul Haq Is their servant. Obviously all these persons belon to the same group. No independent witness has come forward to support them. In the circumstances, we are, therefore, not prepared to believe them as truthful witnesses. We are at a loss to understand as to how it occurred to P. W. Malik Jebanaeb Khan that the accused would be staying in village Gauni for the night. Was he ruling over jinnees who told him about it. His stand that he deferred the plan of apprehending the accused until morning of the following day is as much unbelievable as it is entirely ridiculous. According to him, he had been out in the spirit of patriotism is order to apprehend a saboteur. Had it been a fact, he would have zealously searched the accused and would not have spared a minute in apprehending him. There is yet another circumstance which goes against P. W. Malik Jehanzeb Khan. It is a matter of record that he had withheld the pistol (Exh. P. 3) and did not deliver it to the police at the time of the arrest of the accused. His explanation in this respect that he wanted to produce the pistol before the police himself would appear to be as much flimsy as it has been fabricated. We arc clear in our mind that he had retained it in order to own it. But when it became known, he realized that he could not conceal it and consequently produced the same before the Police. In reaching this conclusion, his statement that he had gone to village Hathian and from there to Peshawar where he produced before Police the pistol loses its significance and hence unworthy of any consideration. Now we proceed to deal with the explosive articles allegedly recovered from the possession of the amused. In this respect, the evidence of Major Sayed Nur Ahmed Shah (P. W. 7) has to be looked into. A look at his evidence will show that these articles were not of foreign origin. P. W. Malik Jehanzeb Khan has admitted that detonators like Exh. P. 2 are used for fishing purposes in the river of their area. He also admitted that during the days of occurrence, a new road from the main Chakdara Dir Road towards Darmung Darra was under construction and explosions were to be used in that regard from which it can be safely concluded that people in that area had the facility to procure explosive articles. We are, therefore, clear in our mind that having failed to rob the accused of his pistol and other belongings, P. W. Malik Jehanzeb Khan managed to procure explosive articles or these were already available with him to foist the same on the accused in order to remove the impression of the people of the locality that he bad conspired against the accused to rob him of his pistol and other belongings. It seems that the investigating agency had the anxiety to prove its case against the accused without caring whether he was or war, not guilty. In this respect, reference may be made to the statement of Major Syed Nur Ahmed Shah, Explosive Expert (P. W. 7). The learned trial Judge, while dealing with his evidence, observed :- At this stage, I am constrained to point out a -noticeable shortcoming of the investigation. II is on record that the number, of detonators Exh. P. 2 which were recovered from the possession of the accused was

15. P. W. Major Sayed Nur Ahmad Shah also stated that 15 detonators were produced before him by the Polies for testing. This witness his stated that out of those 15 detonators (Exh. P. 2) he took one which was used for the testing of plastic explosive Exh. P. 5, as aforesaid, with the result that only 14 detonators were left, but in Court instead 15 detonators were produced and throughout during the trial. the recovery of those very 15 detonators was required to be proved through witnesses No question was put to the witnesses of the investigating agency appeared before the trial Court as to why and how they added one detonator in order to show them 15 although one detonator had already been consumed by Major Sayed Nur Ahmad Shah (P. W. 7). In view of this conduct of the investigating agency, we have, therefore, come to the conclusion that in the present case the said agency bad not proceeded against the accused impartially. On the other hand, it seems that the police was bound to oblige P. W. Malik Jehanzeb Khan for involving the accused in the case In view of the fact that he was a Malik as well as a political figure in the locality. We are now left with the alleged confessional statement (Exh. P. W. 3/1) of the accused. As stated earlier, the accused, denied to have made any ouch statement. During the course of arguments, the learned Asstt. A.-G. relied upon Syed Sharifuddin Pirzada v. Sohbat and 3 others (P L D 1972 S C 363) to show that in the present case the confession of the accused cannot be held to have been extorted from him under duress by reason of his having been in Police custody for some days. But this authority would appear to have no attraction to the present case, for we have disbelieved the prosecution witnesses and have come to the conclusion that the P. Ws. have implicated the accused in the present case for personal reasons. It may be observed that if in a criminal care, the prosecution witnesses are disbelieved, it will follow as a necessary corollary that the retracted confession was extorted from the accused under duress unless the accused has led the investigating agency to the recovery of incriminating articles in the presence of the witnesses whose evidence the Court would believe in the circumstances of the case. In his statement before the trial Court, the accused has alleged that he was subjected by the Police to mental and physical tortures. P. W. Taj Muhammad, District Magistrate, Dir (who claimed to have recorded the confessional statement of the accused) confirmed that the accused had made a similar complaint before him, but added that he had asked the accused if he would be able to show any sign of physical torture on his body and he was not in a position to show him any such sign. A look at the confessional statement and the certificate appended thereto will show that he had not recorded the above complaint of the accused in either of these documents. A Magistrate is bound to record whatever is stated before him by the accused at the time of recording his confessional statement. We feel convinced that the accused had complained about his physical torture by the Police and the learned District Magistrate did not care to record the same. In other words, it is clear to us that while to Police custody the accused was subjected to physical tortures and having come to this conclusion, we era left with no option but to hold that the confessional statement was extorted from the accused under duress. In support of this conclusion, we are re-inforced by the fact that while in Police custody the accused was moved from place to place and in this respect reference may be made to Exh. P. D. which shows that on 26-8-19 4, the accused was in Police custody at Warsak. If it is found upon the evidence or, record that while in Police custody the accused was taken from place to place. it would be sufficient to show that he was exposed to tortures mentally, if not physically and thus the confession of the accused would be held to have been extorted under duress, especially when the prosecution would be unable to furnish any plausible explanation for moving the accused from place to peace, just as it has been unable in the present case. The accused is a School Master in Middle School, Lilawanrai. Said Bathar (P. W. 10), Head Master of that School was produced to show that during the days of occurrence the accused was on casual leave from 29-7-1974 to 31-7-1974 and thereafter he submitted an application for leave on medical grounds and that the said application was rejected by the Deputy Inspector of Schools. He also produced the attendance register in the trial Court to show that the accused was absent during the days of occurrence. But the production of that attendance register would be of no help to the prosecution, for the accused has not denied that he had not been attending the school during the days of occurrence. What be has claimed is that he was' on leave and thus i1 would be obvious that his initial would not be forthcoming on the attendance register In token of his attending the school. Once the Court disbelieves the prosecution witnesses and the confessional statement of the accused is held to have been extorted from him under duress, the statement of the accused at the trial would commend itself to the Court. It is clear to us that the accused was on leave without any objection from his superior officers, for no documentary evidence was brought on the record of this case that he absented in spite of the rejection of his leave application. In the circumstances, the stand of the accused that the leave was to be sanctioned in due course would appear to be plausible. He stated before the trial Court that he had applied for leave, as he was suffering from the Itching of skin and in that respect he had gone to Chitral In order to take bath in Garam Chishma. On his return Journey, he parsed through Tormung, District Dir. It is a matter of common knowledge that in this part of the country people have been regarding Garam Chishma as a blessed Chishma and to take bath therein is believed a panacea for patients suffering from skin diseases. It is not disputed that there is any other route to Chitral except through Dir and thus it would not be a matter of astonishment that for the purpose of taking bath in Garam Chishma the accused had gone to and from Chitral via Dir. P. W. Said Baihar was questioned about the conduct of the accused in the performance of his duties as teacher and in this respect he made the following statement :- Khaista Muhammad accused remained posted under me as a teacher in that school for about 6/7 months before August 1974. The accused is a very efficient teacher and is the discharge of his duties, he had been very fruitful. I did not receive any complaint during the period of his employment under me that accused Kharsta Muhammad was indulging in any subversive activities. It will thus be seen that the accused had earned the appreciation of superior officers as regards his work and character and there is nothing to show that he had beers indulging in politics. In view of what has been discussed above, we have come to the conclusion that it were P. W. Malik Jehanzeb Khan and this party men who, for the reasons recorded above, implicated the accused in the present case and that the investigating agency, to disregard of their duties enjoined upon them by law, proceeded against the accused in an attempt to secure his conviction from the Court. We, therefore, allow this appeal and i1 is directed that the accused would be released forthwith unless required in some other case. The pistol (Exh. P. W. 3) which admittedly belongs to the accused shall be returned to him provided that during the days of occurrence the provisions of Arms Ordinance were not in force in Div District. S. Q. Appeal allowed.