2002 PLP 620 (SCMR)

IRSHAD HASAN KHAN, C.J.‑‑‑Through this common order we intend to dispose of Criminal Petitions Nos.84‑K and 85‑K of 2001, which have arisen from the judgment dated 31‑8‑2001 passed by a Division Bench of the High Court of Sindh at Karach in Anti‑Terrorism Appeals Nos. 10 and 11 of 2001.

2. Facts of the case as per F.I.R. No.248 of 2000, lodged by Inspector, Ali Raza Zaidi of C.I.A. East at Gulistan‑e‑Jauhar Police Station, Karachi, on 9‑10‑2000, are that weapons and explosive substances in large quantity were recovered from House No.A‑65, Block 14, Gulistan‑e‑Jauhar. These weapons and explosive substances were secured from beneath the two beds on which respondents herein were sleeping. Police arrested them and during interrogation they informed that they had brought the weapons and explosive substances from India through Launches with the help of their acquitted co‑accused Haji Dongar etc. They also disclosed that they were working for Indian Agency RAW. After conclusion of investigation, they were sent up to stand trial alongwith their acquitted co‑accused under sections 121, 121A, 122 and 123 of the Pakistan Penal Code; sections 4, 5 and 6 of the Explosive Substances Act, 1908 and section 13‑D of the Pakistan Arms Ordinance, 1965.

3. The learned Judge, Anti‑Terrorism Court No.4, Karachi convicted the respondents under sections 4, 5 and 6 of Explosive Substances Act and section.13‑D of Arms Ordinance and sentenced them to 14 years' R.I. each. They were also convicted under sections 121, 121‑A, 122 and 123, P.P.C. and sentenced to death and a fine of Rs.50,000 each or one year S.I. in default thereof. However, co‑accused Haji Dongar, etc. were acquitted of the charges.

4. The respondents challenged their conviction and sentences before High Court of Sindh, Karachi. The learned Members of the Division Bench disbelieved every piece of prosecution evidence, as a result whereof appeals of the respondents were accepted and their conviction and sentences awarded were set aside with the following observations:‑‑ "

25. There are certain other material flaws in the trial. Neither the charge was framed in accordance with law, nor convictions made are valid and proper. The learned Judge of the trial Court had not considered the ingredients legally necessary to constitute the offences. The charge as well as the convicting clause mentioned in sections 4, 5 and 6 of the Explosive Substances Act, together, and similarly, it mentions an offence punishable under sections 121/121‑A/122 and 123, P.P.C. However, even if these technicalities are ignored, or rectified, the result would remain the same as the evidence produced by the prosecution is to inadequate and defective to prove any guilt of the appellants in Appeals Nos. 10 and 11 of 2001 and respondents in Appeal No. 12 of 2001." 5 Mr. Raja Qureshi, learned Advocate‑General, Sindh, appearing on behalf of the State, at the outset argued that sanction under section 7 of the Explosive Substances Act was duly granted by the competent authority for trial of the respondents by Anti‑Terrorism Court. He further argued that recovery of incriminating articles i.e. 30 kilograms of explosive substances one kalashnikov and 25 rounds from respondent Abdul Jabbar and 10 Detonators and 10 Igniters, one T.T. Pistol of .30 bore and 6 rounds from respondents Muhammad Shafiq, did not suffer from any defect or legal infirmity and in view of the origin, and make of the explosive substances and weapons recovered being Russian as well as their quantity and quality, it cannot be said that they were foisted on the respondents. He further argued that both the respondents had made judicial confessions which were voluntary and true and were also corroborated in material particulars by the incriminating recoveries, therefore, the slight delay in recording the same could not be blown out of proportion. 'He went on to argue that it was evident from the judicial confessions of .the respondents that they were duly trained RAW agents and the explosive substances etc. recovered from them were meant for subversive activities and waging war against the Islamic Republic of Pakistan.

6. We have not only heard the learned Advocate‑General for Sindh at some length but have also gone through the material available on record with h~ assistance. In Ghulam Sikandar v. Mamraz Khan (PLD 1985 SC 11) it was ruled that the principle of appreciation of evidence in acquittal cases is that if the conclusion reached at by the Court is such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof and that too with a view only to avoid grave miscarriage of justice. and for no other purpose.. The important test is visualised in that case in this behalf was that the finding sought to be interfered with after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous.

7. As to the evidentiary value of confession, reference may be made to Muhammad Yaqoob v. State (1992 SCMR 1983). One of the principles laid down therein is that any delay in recording a confession may not be fatal if the Court is satisfied that retracted confession is not tutored and was, in fact, made voluntarily. In the said case confessions of accused were recorded after they had remained in police custody for 11 to 15 days. Also refer Muhammad Gul v . The State (1991 SCMR 942) wherein it was held:‑‑ "Appreciation of Evidence‑‑‑Delay in getting judicial confessions recorded was not fatal‑‑‑Identification of accused was proved by independent and reliable evidence‑‑‑Judicial confessions although detracted were found voluntary and consistent with prosecution case and same were corroborated by ocular testimony of various witnesses including persons from whose places explosive materials were recovered at the pointation of accused and who had no personal motive to falsely implicate accused‑‑‑Requisite proof of malice was also provided in the retracted confessions‑‑ Courts below, held, had evaluated the evidence on record properly and no infirmity of the nature calling for interference by Supreme Court was found‑‑‑Appeals were dismissed in circumstances. " This aspect of the matter also needs further consideration.

8. The learned Advocate‑General also read out some pieces of prosecution evidence to contend that the learned Members of the Division Bench of the High Court have misread the prosecution evidence which has resulted in grave miscarriage of justice. He emphasized that the High Court has not considered the material that was available before it and the overwhelming evidence has been discarded on spacious grounds rendering the impugned findings as wholly artificial, shocking and ridiculous.

9. The principle relating to appreciation of evidence and scope of appeal against acquittal has been extensively dealt with by this Court in the case of Ghulam Sikandar (supra). In the instant case, however, a prima facie, reading of the evidence shows overwhelming proof against the respondents disclosing misreading of ‑evidence resulting into grave miscarriage of justice as vehemently contended by the learned Advocate‑General. Viewed m this perspective, the matter requires deeper scrutiny to examine the contentions raised by the learned Advocate‑General.

10. Needless‑to add that in terrorism cases where any accused person is prima facie, employed by, or works for, or acts on instructions received from, the enemy, or who is acting or attempting to act in a manner prejudicial to the integrity, security or defence of Pakistan or attempts to commit any act which amounts to an 'anti‑national activity as defined in a Federal law, then in such cases it is the duty of the Court to avoid hyper technicalities. The same views reflected in the case of Muhammad Gul (supra) wherein at page 956, para. 19, it has been observed: "

19. It may also be pointed out that subversive acts of the nature which are committed generally at the behest of a hostile foreign country with the object to destabilize the country and to cause harassment and panic among the public are committed by trained persons secretly and, therefore, to expect direct evidence of unimpeachable character will not be fair and proper. The persons who are involved in the commission of the offences which affect the integrity of the country and cause loss of life and property of innocent persons, do not deserve any leniency from the Court on technical grounds. If the Court is satisfied on the basis of the reliable material placed before it that the person accused of such an offence in fact committed the offence, a conviction can be recorded. In the present case the retracted confessions, the reading of which indicates that they are voluntary and consistent with the prosecution case, are corroborated by sufficient further . evidence as pointed out hereinabove, and, therefore, can be relied upon."

11. In the instant case, another question which requires consideration is whether the High Court while acquitting the respondents had kept in view the provisions of section 5 of the Explosive Substances Act, 1908, which makes the following reading:‑‑ "

5. Punishment for making or possessing, explosive under suspicious circumstances.‑‑Any person who makes or knowingly has in his possession or under his control any explosive substance, under such circumstances as to give rise to a reasonable suspicion that he is not making it or does not have it in his possession or under his control for a lawful object shall, unless he can show that he made it or had it in his possession or under his control for a lawful; object, be punishable with imprisonment for a term which may extend to fourteen years."

12. We may observe that the Court dealing with the Anti‑Terrorism cases has to bear in mind that the expeditious trial and its early' conclusion are necessary for meeting the ends of justice and credibility of the judicial process. Any dilatory tactics of the accused should not prevent the Court from concluding the trials expeditiously within a reasonable 'time justly, fairly and in accordance with law.

13. Leave to appeal is granted to consider the above questions. Non bailable warrants of arrest be issued against the respondents Muhammad Shafique, alias Pappoo and Abdul Jabbar alias Zafar. After being taken into custody, they shall be lodged in the Central Prison, Karachi till the conclusion of the appeals, which shall be fixed for hearing at an early date. N. H. Q./S‑154/S Leave granted.