1991 PLP 942 (SCMR)

His sentences shall run consecutively. He is in custody since 13-3-1987. His such detention shall be counted towards his sentences. He is acquitted of the charge under sections 4 and 5 of the Explosive Substances Act." C. Appellant Abdul Samad. "(i) For abetment of offence a/s 3 read with 6 of the Explosive Substances Act, 1908, to suffer sentence of death. He shall be hanged by neck till h is dead. (ii) For offence a/s 307/109 P.P.C. to suffer R.I. for life and to pay fine c Rs.1,00,

000. In default to suffer R.I. for three years more. (iii) For offence a/s 436/109 P.P.C. to suffer R.I. for seven years and to pa fine of Rupees one lac. In default to suffer R.I. for 1-1/2 years. His sentences shall run consecutively. He is in custody since 12-3-198' His such detention shall be counted towards his sentences. He is acquitted of the charge under sections 4 and 5 of the Explosive Substances Act." D. Appellant Fateh Muhammad. "(i) For abetment of offence a/s 3 to suffer sentence of death under section of the Explosive Substances Act of 1908. He shall be hanged by neck he is dead. (ii) For offence a/s 307/109 P.P.C. to suffer R.I. for life and to pay fine c Rs.1,00,

000. In default to suffer R.I. for three years more. (iii) For offence a/s 436/109 P:P.C. to suffer R.I. for 7 years and to pay fir of Rs.20,

000. In default of payment of fine to suffer R.I. for one year. His sentences shall run consecutively. He is in custody since 13-3-198 His such detention shall be counted towards his sentences. Charge under sections 4 and 5 of the Explosive Substances Act is n4 proved against him. He is acquitted there from:' In addition to the above sentences, they were ordered under section 544-A Cr.P.C. to pay as compensation various amounts mentioned in to judgment of the Special Court to the owner of the building of Yousaf Musaf Khana, the owner of Yousaf Musafir Khana and the injured persons. In default they were ordered to suffer R.I. mentioned therein.

6. In respect of the recoveries of explosive material, which are covered CrA.Nos.12-Q to 17-Q of 1989, the Special Court awarded the following sentences:- (i) To suffer R.I. for life for offence under section 4 of the Explosive, Substances Act. (ii) To suffer R.I. for 14 years for offence under section 5 of the Explosive Substances Act. Cr.A.No.13-Q of 1989 (Appellant Fateh Muhammad) (i) To suffer R.I. for life for offence a/s 4 of the Explosive Substances Act of 1908. (ii) To suffer R.I. for fourteen years for offence a/s 5 of the Explosive Substances Act of 1908. Cr.A.No.14-Q of 1989 (Appellant Mulla Abdul Qayyam) (i) For offence under section 4 of the Explosive Substances Act of 1908 to suffer R.I. for life. (ii) For offence under section 5 of the Explosive Substances Act of 1908 to suffer R.I. for fourteen years. Cr.A.No.15-Q/89 (Appellant Mulla Abdul Qayyum). (i) For offence a/s 4 of the Explosive Substances Act of 1908 to suffer R.I. for life. (ii) For offence under section 5 of the Explosive Substances Act of 1908 to suffer R.I. for fourteen years. Cr.A.No.16-Q of 1989 (Appellant Abdul Samad). (i) R.I. for life for offence a/s 4 of the Explosive Substances Act of 1908. (ii) R.I: for fourteen years a/s 5 of the Explosive Substances Act of 1908. Cr.A.No.17-Q of 1989 (Appellant Abdul Samad). (i) R.I. for life under section 4 of the Explosive Substances Act of 1908. (ii) R.I. for fourteen years under section 5 of the Explosive Substances Act of 1908. In all the above cases it was ordered that the sentences were to run concurrently and the appellants would be entitled to the benefit of section 382-B Cr. P.C.

7. Against the above judgments, the appellants filed appeals under section 7 of the Act before the High Court of Balochistan, Quetta, which were dismissed by. a Division Bench through separate judgments. Thereupon, the appellants filed 14 petitions for leave to appeal which were granted to consider the legal questions of general importance which are involved in the appeals.

8. In support of the above appeals, Mr. Tariq Mahmood, learned A.O.R. appearing for the appellants, has contended that since there was delay in recording of the confessions inasmuch as they were recorded on 22-3-1987, 24-3-1987 and 25-3-1987, the same cannot be relied as having been made voluntarily. 1n furtherance of the above submission, he has invited our attention to a news item, which had appeared in Urdu Daily Newspaper `Jang' of Quetta dated 14-3-1987 in which in a Press Conference presided by the then Chief Minister, it was averred that the accused present in the Press Conference, had allegedly caused inter alia the above bomb blasts, were arrested and that they had admitted the factum of having caused the same. On the basis of the above news item it has been. vehemently urged by Mr. Tariq Mahmood that if the appellants had already admitted the commission of the above offences on or before 14-3-1987, there was no plausible reason for not having produced the appellants before the Magistrate for recording their judicial confessions. It has also been submitted by him that since no plausible explanation as to the delay has been given by the prosecution, the aforesaid retracted judicial confessions cannot be relied upon. I may observe that the learned Special Court has dilated upon the above contention and observed that the nature of the case required further thorough investigation as to discover the full facts and, therefore; because of that the appellants' confessions might have not been recorded. I am inclined to hold that the nature of one incidents which had taken place at the behest of a foreign hostile country which had the backing of a super power was such which needed thorough probe and, therefore, the delay in getting the judicial confessions recorded is not fatal, particularly when the above judicial retracted confessions are corroborated by a number of other pieces of evidence on- record which have been highlighted by the learned Special Court in its judgments relating to Almarkaz Hotel and Yousaf Musafir Khana incidents, namely:-- (a) Recovery of explosives from possession of accused Mulla Abdul Qayyum--F.I.R. No.26 of 1987. (b) Recovery of explosives from possession of accused Mulla Abdul Qayyum--F.I.R. No.27 of 1987. (c) Recovery of explosives from possession of accused Muhammad Gul--F.T.R. No.30 of 1987. (d) Recovery of explosives from possession of accused Fateh Muhammad--F.I.R. No.31 of 1987. (e) Recovery of explosives from accused Abdul Samad--F.I.R. No. 36 of 1987. (f) Recovery of explosives from accused Abdul Samad--F.I.R. No.38 of 1987. (g) Living of accused Muhammad Gul in Room No.9 of Yousaf Musafir Khana, in identification test Syed Yahya Khan picked the accused. (h) Having lived in Pishin Musafir Khana,'in identification test Agha Muhammad picked all the four accused. (i) Pointation of accused Abdul Oayyum, Almarkaz Hotel and Parwan Hotel. (j) Pointation of accused Muhammad Gul, Yousaf Musafir Khana and Oil Depot. (k) Pointation of accused Abdul Samad, Salah-ud-Din Chowk, Helpers Eye Hospital and Panjsher Hotel; and (l) The diary found from possession of Mulla Abdul Qayyum disclosing the names of all the four accused, the blasted places and the places to be blasted and the reward received by the accused. In this regard, it will suffice to refer to the case of Syed Sharifuddin Pirzada v. Sohbat Khan and 3 others P L D 1972 SC 363, in which the accused Sohbat Khan was arrested on 3-6-1900, identification parade was carried out on 11-6-1960 and the judicial confession was made by him on 18-6-1960. The High Court had discarded the judicial retracted confession but this Court while reversing the acquittal judgment of the High Court, relied upon the same and observed as follows:- "It may be noted that the learned trial Judge and the High Court have discarded the judicial confessions on the ground that they had been in the police custody for some time before they were produced before him for getting their confessions recorded and that they were not asked question as to how long they had been in the police custody and why they had been chosen to get their confessions recorded. In our opinion, the reasons given by the learned trial Court and the High Court on this point are unsatisfactory. The fact that Sohbat Khan was for some time in the police custody does not lead to any conclusion that he was tutored. Remaining of accused persons for some time in police custody does not affect their judicial confessions. Mr. Azizuddin, A.C.M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily."

9. Then it was contended by Mr. Tariq Mahmood that factually the appellants were not remanded to the judicial custody after the recording of the judicial confessions. In support of his above submission, he has invited our attention to the fact that though the appellants were sent to the jail after recording of the judicial confessions but they were taken out of jail on the same day. In my view the Courts below have rightly rejected -the above contention as it is an admitted position that the Magistrates after recording the judicial confessions of the four appellants remanded them to the judicial custody, but they were taken out on the basis of the orders of the Deputy Commissioner for interrogation in respect of the other F.I.Rs. which were registered besides the two F.I.Rs pertaining to Almarkaz Hotel incident and Yousaf Musafir Khana incident. The above contention, therefore, fails.

10. It was next contended that the two Magistrates who have recorded the confessions, were Balochi speaking and not Pashto speaking and, therefore, the confessions could not have been correctly recorded by them. The above contention also seems to be devoid of any force as both the Magistrates who recorded the confessions on oath have stated that they were conversant with the Pashto language, which statement was tested by the learned Special Court by getting a sentence translated into Pashto by one of the Magistrates. In my view the learned Special Court has rightly repelled the above contention.

11. It was further contended by Mr. Tariq Mahmood that the confessions were forwarded by the recording Magistrate on 11-4-1987 after the delay of several weeks from the date of recording of the same. The above contention also appears to be not tenable. Unless it is held that the Magistrate had tampered with the recorded confessions, simpliciter delay in forwarding the same to the Deputy Commissioner would not affect the evidentiary value of the same. Nothing has been brought on record by the appellants to prove the factum that factually the above confessions were tampered with between the period which had elapsed from the dates of recording and the date of forwarding of the same.

12. Then it was contended by Mr. Tariq Mahmood that Question No.10 in the pro forma as framed in fact amounts to inducement to an accused person to the effect that if he would make a confession, he would not be given in the police custody and if he would not make, then he would be given to the police custody. The above question reads as follows:- The Magistrate, Mr. Bashir Ahmad Raisani, in his statement before the Special Court had stated that he had warned the accused that he was not bound to give confession and if he would not give confession, he would not be handed over to the police custody (at page 109 of paper book of Cr. A. Nes.4-Q to 7-Q of 198,9). Mr. Sadan Khan Marri, who was the other Magistrate who recorded the confessions, has also deposed that he had informed the accused that he was not bound to give confession and whether he would give it or not, he would be remanded to the judicial custody but would not be given to the police. The defect, if any, in the phrasing of above Question No.10 stands cured by the above warning of recording Magistrates.

13. It was also contended by Mr. Tariq Mahmood that since the investigating agency was dishonest inasmuch as it had fabricated one of the Registers (Exh.P/14-B) pertaining to Pishin musafir Khana, it would adversely reflect upon the confessions. In furtherance of his above submission, he has invited our attention to the above Register and pointed out that though the same pertains to a period of nearly two years but it is written by the same ink and in the same handwriting. Even if we were to accept the above contention that the above Register was in fact prepared during the investigation, it would not nullify the other evidence which has come on record. The learned Special Court has rightly observed that the Manager of Pishin Musafir Khana, Syed Agha, has identified the four appellants as the persons who used to stay in his Musafir Khana. Nothing has been brought on record to cast any doubt as to the veracity of the statement of the above witness. He had no personal reason to make the false statement against the appellants.

14. Mr. Tariq Mahmood has relied upon the case of Abdur Rashid v. Umid Ali and 2 others P L D 1975 SC 227 and the case of Naqibullah and another v. The State P L D 1978 SC 21 in support of his above submission that the retracted confessions in question are liable to be discarded. In the above first case this Court discarded the retracted confession on the ground that the Magistrate who recorded the confessions had personal involvement inasmuch as he visited the scene of crime as a private citizen and he also visited the house of the deceased to offer condolence. The above case has no application to the facts of the present case. Whereas in the above second case though there were some alleged infirmities inasmuch as the Magistrate did not put any question to the accused as to whether they had been tortured by police during their arrest nor he did examine their person in order to satisfy himself, whether they had marks of violence on their bodies nor he enquired as to the cause for the delay of four days in the production of the two accused before him for making the confession, this Court had not discarded the above confession and the following observations were made:- "

17. In this connection the two accused in their respective statements recorded by the Committing Magistrate denied having confessed their guilt before any Magistrate. On the other hand Wasal accused in his statement recorded by the Sessions Judge state that he was arrested by the police on 21-7-1974 and was given beating and was asked to make the confessional statement before the Magistrate. It was on account of the torture and duress of the police that he was forcibly made to give a statement. on which his thumb impression was obtained. Similarly, Naqibullah accused stated that he did not voluntarily make any such confessional statement (Exh.P.Y.) and that it was obtained from him on account of police torture and duress. Apart from this inconsistent stand taken by them in the two Courts, they did not adduce any evidence in defence. Moreover, the prosecution examined the two Investigating officers, namely, Fazal Rabbi Khan, A.S.I. (P.W.9) and Mahboob Ali Khan, S.D.P.O. (P.W.2) but not even a suggestion was put to them in their cross-examination to show that the two confessions were procured from the accused by torture and were involuntary. Even from the cross-examination of Syed Akram Shah Magistrate (P.W.6) it does not appear that the two confessions were caused by any inducement, threat or promise. They cannot, therefore, be struck down as irrelevant under section 24 of the Evidence Act, 1872."

15. In the present case the Magistrate as well as the Investigating Officers who have been examined, have denied the various suggestions of the defence which might have adverse effect as to the evidentiary value of the above retracted confessions. However, I may observe that in the above reported case, the accused were acquitted by this Court not on the ground that the retracted confession was inadmissible or unreliable but for the reason that there was no corroborative piece of evidence to re-inforce the aforesaid retracted confession in the said case. I may also observe that a retracted confession is sufficient to make the basis of recording conviction but the Court as a rule of prudence seeks corroboration of the same on all material particulars. In the instant case the Special Court has pointed out the above various acts which furnish corroborative pieces of evidence besides the ocular testimony of the various witnesses including of the persons from whose places the explosive materials were recovered at the pointation of the appellants concerned. In this regard, it may be pertinent to observe that in the case of Mullah Abdul Qayyum, which is now subject-matter of Cr.A.No. 14-Q of 1989, the prosecution examined P.W.1 Abdul Baqi and P.W.2 Abdul Bari, the two brothers in whose shop the appellants had kept a Khaki coloured bag locked containing the explosive material which was recovered at the pointation of the above appellant. The above two witnesses had no personal reason to implicate the said appellant falsely in the case. Their statements that they belong to the same village to which the appellant belongs and they had known the said appellant from the childhood was not challenged by the aforesaid appellant's counsel.

16. Similarly in the two cases against Abdul Samad, which are the subject-matter of Cr.A. Nos. 16-Q and 17-Q of 1989, one P.W.3 Syed Sultan and P.W Jan Muhammad, the owner of the shop and the owner of the bus, in whose shop and the bus the aforesaid appellant had kept explosive material separately were examined as witnesses, who had no personal motive to implicate the said appellant falsely. 16-A. It may also be pertinent to point out that at the time of arrest of the appellant Mulla Abdul Qayyum by P.W.12 Ch. Muhammad Sharif, S.H.O., on personal search a small diary of plain paper was recovered (Ex. A/5), which inter alia contains the names of all the four appellants and their programme regarding the explosions of Pith February, 1987. A photostat copy of certain pages has been separately exhibited as Ex. 5/55, No question was put by the counsel for the aforesaid appellant in cross-examination to challenge the genuineness of the above diary.

17. At this juncture, it may be pertinent to refer to section 23 of the Qanun-e-Shahadat, 1984, which provides that "where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or actionable wrong, anything said, done, or written by any one of such persons in reference to their intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believing to be so conspiring as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it". In my view, the various acts of the present appellants pointed out by the learned Special Court and reproduced hereinabove, will be relevant in terms of the above section 23.

18. It may also be observed that the trial of the appellants was before the Special Court under the Act and not by a normal Court under the general law. Section 8 of the Act places burden of proof on an accused person charged with the commission of a scheduled offence in the event of having found in possession of any article or thing which is capable of being used for or in connection with the commission of such offence or is apprehended in circumstances which tend to raise a reasonable suspicion that he has committed such offence. In such an event ;under the above section, it has been provided that the accused shall be presumed to have committed the offence unless he can prove that he has not in fact committed the offence. The above section reads as follows:- "

8. Burden of proof.--Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence:' Similarly section 5 of the Explosive Substances Act, 1908, places burden proof on an accused person to prove that the explosive in his possession or under his control was for a lawful object.

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 destabilise 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 ground. 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.

20. As regards the Cr. A. Nos. 12-Q to 17-Q of 1989, two additional grounds were urged by Mr. Tariq Mahmood, namely, firstly, that the mashirs to the recoveries were the police personnel and, therefore, no reliance could have been placed and, secondly, that there is no evidence to prove malicious intention in terms of section 4 of the Explosive Substances Act on record and, therefore, the convictions of the appellants under the above section cannot be sustained. As regards the first contention, it will suffice to refer to the following cases:-- (i) Kamir v. Nazir Ahmad and others 1980 S C M R 791 and (ii) Muhammad and others v. The State P L D 1981 SC 635. in which it has been held inter alia by this Court that police personnel are good witnesses as the private persons in the absence of circumstances which may cast doubt about their truthfulness. In the instant case Muhammad Sharif, S.14.0. in his statement had averred that the public persons were not willing to become mashirs to the recoveries and, therefore, he had made the police personnel. The above explanation seems to be plausible keeping in view the nature of the offences. In support of his second submission, Mr. Tariq Mahmood has relied on the case of Muhammad Yasin v. The State 1984 S C M R 866 in which inter alia the following observations were made:-- "

6. After having carefully gone through the above-noted provisions and given our anxious thought to the contentions raised by the learned counsel for the appellant, we are inclined to agree with the appellant's counsel that the evidence on the record does not make out either an offence under section 3 or under section 4(h) of the Act in question. Section 3 makes it punishable for unlawfully and maliciously causing explosion which is likely to endanger life or property. No doubt in the present case an explosion was caused which endangered life, but even if it be assumed that the appellant had knowingly caused the explosion yet it cannot be said that he did it maliciously. It is evident from the record that not only his own fingers had been blown off but his minor son aged 3 years who was standing nearby was also seriously injured. It cannot, therefore, be imagined that the appellant caused explosion maliciously. As a matter of fact, from the evidence on the record it appears that he did not even know that the explosion was likely to occur at that time. The necessary ingredients of the offence are, therefore, missing, with the result that the appellant could not have been found guilty of offence under section 3 of the Act. "

7. Section 4(b) of the Act makes it an offence to be in possession or in control of any explosive substance "with intent by means thereof to endanger life, or cause serious injury to property, or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan". The learned State counsel has not been able to point out any material on record to establish such intention. He argued that this should be inferred from mere possession of the Explosives. We do not think such an inference can be drawn in this case. The intention in question must either be specifically established or such facts should be brought on record from which an inference of the presence of such intention can be reasonably drawn. But we feel that the possession of the explosives by the appellant in this case does not fall within the mischief of section 4(b) either."

21. In the present case the requisite proof of malice is provided in the C retracted confessions and, therefore, the above case has no application. The two Courts below have evaluated the evidence on record properly. There is no infirmity of the nature which may call for interference by this Court. The appeals have, therefore, no merits and hence they are: dismissed. N.H.Q./M-1481/S Appeals dismissed.