1977 P Cr (PLP)

I. MAHMUD, J. Appellant Abdul Karim son of Malik Muhammad Yousuf stands convicted under section 5 of the Explosive Substances Act, 1908 by the Judge, Special Court under the Suppression of Terrorists Activities (Special Court) Ordinance XVIII of 1974 vide judgment dated 2‑1‑1975. He was sentenced to suffer R. I. for two years. He has filed the present appeal to challenge his conviction and sentence.

2. Briefly the prosecution case is that the appellant was under arrest since 20‑7‑1974 by the City Police Station, Quetta, in connection with Case No. 164 of 1974, which was registered against him. He was also suspect in another Case No. 183 of 1974 and during the course of investigation, he made a statement on 23‑8‑74 to Malik Fateh Muhammad, Inspector, C. I. A. Police, Quetta, who was entrusted with the investigation of that case, that he had buried four dynamites, four detonators and three fuse coils in the ground of the Science College Hostel at Quetta and that he could lead the police to their recovery. Accordingly, at about 10‑45 p.m. a police party comprising of Inspector Malik Fateh Muhammad, S. I. P. Muhammad Sharif and other police officers and Mashirs Sadiq Shah and Khuda Bux, who was picked tip on the way, went with the appellant to the spot pointed out by him, and after digging to a depth of about 9 inches in the ground, the appellant brought out two envelops containing four dynamites, four detonators and three pieces of fuse coils. The incriminating articles were seized and a mashirnama prepared under the road light, which was signed by P.W. Khuda Bux and Sadiq Shah, who was not examined. Three dynamites and three detonators were sealed by Head Constable Tassaduq Hussain Shah and were sent to Mouladad A. S. I. Explosive Expert, Quetta, for examination and analysis, who gave a report that the articles were explosive substances and were serviceable and dangerous to life and property. The two Mashirs were produced for examination by Mr. Kamal‑ud‑Din, Magistrate First Class, Quetta under section 164, Cr. P. C. on 24‑8‑

74. The F. I. R. was registered on 28‑8‑74 in a separate Case No. 2/74 upon advice by the Prosecution Branch. After concluding investigation and obtaining necessary consent, the appellant was sent up for trial before the Special Court under sections 3, 4 and 5 of the Explosive Substances Act, 1908.

3. The defence of the appellant was the denial of the prosecution case. However, in his statement, the appellant admitted that he was in custody of the C.1. A. Police at Quetta on 23‑8‑74, but denied having made a statement on that day to Inspector Fateh Muhammad during his interrogation that he had buried the incriminating articles in the ground of the Science College Hostel, Quetta and that he would produce the same. He further pleaded that the police was in search of his father, because he was associated with the National Awami Party and his uncle Haji Muhammad Issa was told that unless he produced the appellant's father, all the family members would be arrested. Fourteen persons of his family were arrested but were later released when his father surrendered and that being a student of Final B. Sc. he had no concern with the explosives.

4. The Special Court after examining the prosecution evidence found that the appellant did make the incriminating statement, Exh. 3/A, and there after did lead the police party to the recovery of the explosives on his pointation and that in the absence of an explanation as to how he gained knowledge of the articles lying in the ground, the burden of proof of which fell on him under section 8 of the aforesaid Ordinance the appellant must be presumed to had have possession and control of the incriminating articles. He, therefore, found him guilty of the offence under section 5 of the Explosive Substances Act, 1908. However, as there was no evidence with regard to the intention to cause any explosion he found him not guilty under sections 3 and 4 of the said Act.

5. The main question for our consideration is whether the Special Court had properly appraised the prosecution evidence with regard to the recovery of the incriminating articles at the instance of the appellant. In this regard, the prosecution relied, firstly, on a statement, Exh. 3/A, said to have been made by the appellant to Inspector Fateh Muhammad, P. W. 1, during interrogation on 23‑8‑74 and secondly; that the recovery of the incriminating articles was made in consequence of the statement made by the appellant at his pointation which is unanimously supported by all the prosecution witnesses including the mashir, Khuda Bux. Mr. Khalid Malik, the learned counsel for the appellant, submitted before us that the statement, Exh. 3/A, has not been proved to have been made by the appellant as alleged by the prosecution on the following grounds. The statement is alleged to have been made in the hearing of Sadiq Shah, who was asked to listen to what the appellant stated, but Sadiq Shah has not been examined. Again, the statement is alleged to have been repeated in the hearing of Khuda Bux, P. W. 2, and Sub‑Inspector Muhammad Sharif, P. W.

3. Muhammad Sharif stated that on their way to the Science College at about 10‑30 p.m. in a jeep to effect recovery, they stopped near Grindlays Bank and picked up witness Khuda Bux, whom he knew before and that the appellant repeated the similar statement to him. But in his cross‑examination Sub‑Inspector Muhammad Sharif was successfully confronted with his statement under section 161, Cr. P. C., in which he had omitted to mention this significant fact. Moreover, Khuda Bux, P. W. 2, does not support the prosecution. He stated that while in the jeep he had no talk with any person, except Inspector Fateh Muhammad and S. I. P. Muhammad Sharif. Further that even in the F. I. R. registered by Inspector Fateh Muhammad on 28‑8‑74 there is no mention that such statement was heard by Sadiq Shah and Khuda Bux although he had stated that the appellant did make the statement. Mr. Khalid Malik also assailed the statement, Exh. 3/A, on that ground that it was inadmissible under section 27 of the Evidence Act as being in the nature of a confession of possession of the incriminating articles, and in this connection cited The State v. Jamil Iqbal (PD 1974 Quetta 28).

6. The above grounds were considered by the special Court and were rejected, we think, quite rightly. It is admitted by the appellant that he was in custody on 23‑8‑

74. It has also been established that the incriminating articles were recovered at the pointation of the appellant, who had dug out the same from a depth of 9 or 10 inches in the ground. In the absence of any suggestion in cross‑examination of the prosecution witnesses for laying a foundation that the incriminating articles were surreptitiously planted by the police in order to falsely implicate the appellant and also in the absence of any explanation by the appellant as to how he gained knowledge of the articles lying buried in the ground at the spot pointed out by him, the only inference is that he must have made a statement to the police officer preceding the recovery. As rightly observed by the Special Court, the entire statement, Exh. 3/A, is not admissible but only such portion thereof as relates distinctly to the fact thereby discovered, under section 27 of the Evidence Act, whether it amount to confession or not. Section 27 of the Evidence Act does not require an evidence of witnesses to prove that the statement was made to a police office apart from the evidence of the police officer himself, so that even if the version that the statement was made in the hearing of Sadiq Shah and others, is no believed, it will not detract from the position that the statement was made to him as stated by Inspector Fateh Muhammad leading to the recovery. We, therefore, find no force in the submission of the learned counsel for the appellant.

7. The learned counsel for the appellant further assailed the evidence of Khuda Bux as unreliable in view of certain alleged discrepancies in his evidence with regard to the place of recovery and the location of the broken wall through which the police party entered the ground. These discrepancies are not material since mashir Khuda Bux categorically stated that the actual spot was pointed out by the appellant.

8. For the foregoing reasons, we find no force in this appeal, which is accordingly dismissed and the conviction and sentence of the appellant is maintained. Appeal dismissed.