P L D 1977 Peshawar 64 (PLP)

ABDUL GHANI KHAN KHATTAK, J.

Sald Anwar son of Haji Gul Muhammad resident of Mandori, District Mardan, was charged for offences under sections 3, 4 and 6 of the Explosive Substances Act and 43, D. P. R. and by the judgment dated 30-3-1976, he was found guilty of both the charges and sentenced to 5 years' R. I. under sections 3 and 6 of the Explosive Substances Act and to similar term of imprisonment under rule 4 of the Defence of Pakistan Rules with the direction that the sentences to run concurrently. He has appealed from bit convictions and sentence.

2. On the night of 7-1-1974 at Q p.m. Abdul Malik Khan Sub-Inspector (P. W. 8) while on Gasht heard the report of explosion from the direction of Head Post Office, Mardan and on reaching the spat, Hidayatullah Head Post Master, Mardan reported the incident per Exh. P. A./t which was seat to the Police Station for registration of the case. He prepared the site plan Exh. P. C. with the notes thereon in his hand. He recovered from the spot iron gause (Exh. P. 1), 4 pieces of used match-sticks (Exh. P. 2), a piece of cloth (Exh. P. 3), burnt letters (Exh. P. 4) and two locks (Exh. P. 5) ride recovery Memo. (Exh. P. 8). He recorded the statements of Khaliqdad Watchman (P. W. 11), Hidayatullah Khan Post Master (P. W. 4), Wasim and Ali Hussain (not examined) in Court.

3. The accused surrendered on 28-5-1975 and on the following day his custody was obtained by the police tilt 3-6-1975 on which date after mating some disclosures about the occurrence, he was produced before the Court of Ilaqa Magistrate for recording his confessional statement which was duly recorded on 4-6-1975 and the accused was put to identification parade by Khaliqdad Chawkidar (P. W. 11). The appellant has described the incident in his confessional statement as follows: - In, I passed my matriculation examination, from Government High School No. 3, Mardan and joined Government College, Mardan in First Year Class where I got acquaintance with Khan Malik of Dosara and Amir Shah Mahboob and Farmanuddin of Bakhshali on account of whom I got membership of Pakhtoon Students Federation and would attend meetings of the Federation. In 1971 through the Federation I got contact with one Humayun of `Bijli-Ghar', Hazrat Hussain of Sin Balol Shaukat scan of Amirzada Khan and Anwar Badshah. About one year before, probably on the morning of the 7th of July 1974, I visited Anwar Badsha nephew of Shahzadgul Bacha Senator in his house at Shamganj. Anwar Badshah after entertaining me with tea offered to take me info confidence on the condition that it will not be disclosed and on my assurance, Anwar Badshah told me that he had a bomb which was to be exploded in the post office the following night. On my enquiry as to what for it shall be done, Anwar Bacha told me that it was the directive of our party i.e. National Party, that it had to be done the same night at the aforementioned place. As such, I agreed with Anwar Bacha and told him that I shall wait for him at Bank Road near National Bank and that he should bring the bomb with him. In accordance with my promise I came at the appointed date in the evening where Anwar Bacha was present before my arrival. I had a cycle with me on which we rode to the Post Office at a short distance from the G.T.S. Stop, where I stayed at the entrance gate. Anwar Bacha had the bomb wrapped is an envelop and the Chawkidar asked him as to what he was doing to which Anwar Bacha replied that he wanted to put a letter in the letter box. Anwar Bacha lighted a match pretending that he was lighting a cigarette, therefore, the Chawkidar did not understand his design as to what Anwar Bacha was doing. Anwar Bacha after igniting the bomb put it in the box and immediately retreated. I made off to my house on cycle and Anwar Bacha came Walking. On reaching near Pir Muhammad Market; I heard the report of the explosion. As the warrant of my arrest eras issued three days after, therefore, on account of fear, I went to Swat where I lived with Haji Ajar Shop keeper.

4. The prosecution has examined Khaliqdad Chawkidar to lave seen the occurrence. He was at the material time present in the post Office where Hidayatullah Khan Post Master was talking to Officer of the Postal Department, in the lawn, and after their dispersal while Khaliqdad was, taking chairs etc. from the lawn inside the building, be saw two young men coming to the Post Office who entered the Veranda so as to reach the letterbox, out of whom ore of them put an envelop in the box and both of them then departed and that several persons had posted letters in the post box during the time when the Post Master and the visiting Officer were talking and that after about 10-15 minutes of the departure of those two young men, he saw smoke coming out of the letter-box immediately followed, by an explosion. According to this witness one of those two young persons was wearing white clothes while the other was wearing Khaki clothes and the envelope was in the band of the person wearing Khaki clothes, as also the cycle which he carried along.

5. The evidence of Shabir Khan A. C. O./Special Branch Police, Mardan, is try the effect that the appellant (Said Anwar) was recorded as President of the Pakhtoon Students' Federation of Government College, Mardan, for the year 1974.

6. On 9-2-1975, Abdul Ali Khan S. 1. (P. W. 12) raided the house of the appellant but be could not be found and on 28-5-1975, the appellant was arrested on his surrender before the polic4. 'The witness secured on 29.5-1975 remand of the appellant to police custody till 3-6-1975. He interrogated tine appellant during all these days and on 3-6-1975, he produced the appellant for getting recorded his confessional statement. According to this witness the appellant made disclosures about the occurrence on 29-5-1375 but his statement was then not recorded because the witness wanted further to be sure about the disclosures made by the confessing accused. The witness stated: As I had maultifarious duties to perform so I could not concentrate wholly arid solely on the interrogation of Said An war accused in the Police Station. The Court of the concerned Magistrate is situated quite close to P.S A Division. Mardan, and the intervening distance between the two may be from 50 to 100 paces.

7. The plea of the appellant was innocent and false implication as he was an active work-or of the Pakhtoon Students' Federation, With regard to the confessional statement (Exh. P. W. 10(B), he stated at the trial,: I was kept in police custody and I was physically and mentally tortured and beaten to such an extent by P. W. Abdul Ali, Khan S. I. And one other S. I. named Dilber Khan, to the extent that I cannot explain in words, what treatment they gave ale. I feel shy to disclose that they tortured me to such an extent that I am now absolutely incapable of marrying. It was under these circumstances, that I was obliged te state what the police wanted me to say and it were These circumstances which obliged me to put my signature on Exh. P. W. 10/B, wherever I was asked to do so. My confessional statement is neither true nor voluntary. In fact, I made no statement before the Magistrate. I was simply asked to sign the confession memo, which I did.

8. The ocular testimony of Khaliqdad Chowkidar has not been believed by the learned trial Court. The conviction of the appellant is based on his retracted confessional statement supported by his abscondence. We are not very much impressed by explanation for having remained in hiding for pretty long time. The appellant has said : "in fact our business is selling and purchasing vegetable seeds. I was in Karachi and then in Lahore in connection with my business and later when I received a letter from my house that I was wanted by the police, I came from there and on my own appeared before the police .." Khaliqdad P. W. gives no particulars about the last two persons seen by him shortly before the occurrence and according to the prosecution the appellant is definitely one of those two persons. There being no clue regarding the appellant in the statement of Khaliqdad we wanted to know as to how the appellant was suspected by the Investigating Agency for the offence and in the challan we find the following : Khaliqdad did not put the investigating agency on track behind the appellant and it was the above disclosures made by Amirullah which gave clue to the investigating agency following by his (Said Answer's) warrant of arrest issued on 7-&1974. The following in the statement of Khaliqdad P.W. reflects on the events succeeding the arrest of the appellant : "Later, one morning I was summoned by the Thanedar to Police Station where Said Anwar accused was present. The Thanedar told me that I would have to place ray band on Said Anwar accused stating that he was the same person whom I had seen in the Post Office on the night of occurrence. I told the Thanedar that as I had not seen the face of any one on the night of occurrence, therefore, it would be unfair for me to wrongly charge Said Anwar accused, but I was threatened by the Thanedar that I would lose my service if I did not place my hand on Said Anwar accused in an identification parade. Later, at noon time on the same day, I and the Tehsildar were taken by the Thanedar to the Jail where I was made to place my hand ors Said Anwar accused, in an identification parade and since Said Anwar accused had already been shown to me, I had no difficulty to place my hands on him in Jail although .." What emerges from the above statement of facts-by Khaliqdad is that the identification of the appellant by him 0o been rightly disbelieved by the learned trial Court. But the matter does not end here. The accused made the confessional statement on 3-6-1975. We find in the statement reproduced above that Khaliqdad found Said Anwar present in the Police Station in the morning whom Kbaliqdad picked up in the identification parade the same day in the afternoon. This is a serious circumstance and the learned Assistant Advocate-General has not bee able to satisfy us regarding the over anxiety of the investigating agency in padding up the case against the appellant. The evidence of Sabir Khan P. W. aforementioned is indicative of the investigation being apprehensive of the federation as a body to be concerned in subversive activities. If this is not so, no other purpose of such evidence has been brought to our notice.

9. After keeping out of consideration, the supporting evidence of Kbaliqdad, there remains to be examined the confessional statement which was found sufficient for sustaining the conviction supported of course by abscondence of the appellant. The confessional statement which has not been adhered to must be scanned in juxtaposition with the direct testimony of Khaliqdad relevant portion from whose statement with a view to emphasise the point may be reproduced at the cost of repetition :- "The envelope was in the hand of the person, wearing Khaki clothes. A cycle was with the person in Khaki clothes . . . . . As against this, the confessing accused has said that he stopped at the gate of the Post Office. It follows from it that the appellant did not enter the premises. As such, there could be no hint given by Khaliqdad regarding the appellant. Our doubt is further aggravated by the fact that the confessing accused as per his statement made away with the cycle but we have been asked by the prosecution to believe that the person who actually manipulated the blast was having the cycle. This factual position becomes paradoxical, which naturally reflects on the prosecution case. Moreover, Khaliqdad 1s not vocal about having bad talk with either of the two persons white in the confessional statement it is recorded: The Chowkidar is silent not only of talking to the principal accused but he is also unable to see him (accused) having lighted match-sticks, not one but three in number. There is yet another paradox available in the site plan indicating at point 3 the Chowkidar sitting, whereas the Chowkidar claims to have been busy at the material time in some other duty. This endeavour is not difficult to understand. May be he i9 shown sitting to give him the character of yen observer.

10. The learned Advocate-General quoted three cases in support of the proposition that the confessional statement though retracted finds corrobora tion from the abscondence of the appellant. The first case quoted is Chulam Qadir v. The State (1970 P Cr. L J 1485). The distinction is that the accused after his arrest on being interrogated took the police and the Masheers to a nearby place and brought out his licensed gun which was fund to contain an empty shell emanating fresh discharge regarding which the opinion of the Ballistic Expert was positive. It was in these circumstances that the ab3condence of two days was considered alongwith the supporting circumstantial evidence mentioned above. The next case quoted in support was State v. Nooran Shah and another (P L D 1967 Pesh. 274). In that case, the direct testimony of the witnesses was found supported by the abscondence of the accused three days soon after the occurrence. The case of State v. Amanullah and another (P L D 1972 Pesh. 92) too is in the same stance and in that case also the ocular testimony was supported by the disappearing of the accused after the occurrence. In the case of Mangto v. The State (1976 P Cr. L J 243), it was held: The fact of absconsion of accused is not a piece of evidence against the accused. Such a conduct can be equally consistent with his guilt or innocence. A person whose name is mentioned in the F. I. R. may abscond if he is innocent to avoid unnecessary arrest and harassment and in case he is guilty to escape from the clutches of law. No inference one way or the other can be drawn from the fact of absconsion. The case of Javed 1qbal v. The State (P L D 1975 Pesh. 230) has somewhit resemblance with the matter under consideration which may be illustrated by qaoting following from that case "Now by looking at the alleged confessional statement of accused in the context of these doubtful premises, there would emerge quite a few features which would appear to becloud its truthfulness. In the F. I. R. and the evidence of P. Ws. what was mentioned was that four telephone wires were found cut at the place of occurrence. But in his confessional statement, the accused has mentioned only two wires. Similarly, in the evidence of S. I. Madad Khan, accused and Shah Hussain both were said to be Commanders of Pakhtoon Zalmai for village Hassan Khel. But in his confessional statement accused has not owned this position saying as if he was an ordinary worker of this militant organization. In this view also therefore, the retraced judicial confession was not of the typs which should have been accepted without corroboration. And thus should have been disregarded. Frankly, we have not been able to comprehend as to why would accused volunteer to make a confessional statement. The prosecution's own case is that he not only belongs to the militant organization of Pukhtoon Zalmai, but was the Commander of it for village Hassankhel, Tehsil Charsadda. Now if in an organization of this type the accused was able to attain the rank of a Commander, it is obvious that he would belong to the hardcore and as such must have passed the rigorous tests which are normally the wont of all militant organizations, to believe, therefore, that he volunteered to make a confessional statement within 7 days of his remand is police custody would be unthinkable unless, of course, be had been subjected to pressure by police about the deleterious disposition of which the Supreme Court of Pakistan had the occasion to take judicial notice in the case of Abdul Rehman v. The State."

11. The appellant remained in police custody for quite a few daps,' where probably he could hardly have the advice of his relatives. There was no trace of evidence whatsoever connecting him with the crime before he confessed, and above all the confessional statement is not consistent with the direct testimony against him. These are the points which militate against the probative value of the confessional statement.

12. Before parting with the matter it must be made cleat that sub sequent disappearance of the appellant is though admissible as conduct under section 8, Evidence Act, yet some times persons although absolutely innocent remain in hiding, which cannot be the proof of guilt. It is of course corroborative circumstance and gives some kind of support to other evidence strong enough to sustain conviction. We are not dilating upon the exculpatory, nature of the confession, for without discussing this aspect, we are not convinced about the guilt of the appellant.

13. After considering the facts narrated above, we are not satisfied that the case against the appellant is proved beyond a reasonable doubt. We argil not satisfied that the confession was voluntary .1 tied it bean so, It would have been got recorded with no loss of time by the investigating agency, The explanation given by them, on the face of it, appears very clumsy that the Investigating Officer had other duties to perform and therefore it was put off for about a week. We have also made it clear that the confessional statement does not have the traits of a true statement.

14. The result, therefore, is that we set aside the conviction and sentences and acquit the appellant who has already been released by a o short order. S. Q. Appeal accepted