NAZIM HUSSAIN SIDDIQUI, J.--This judgment will dispose of Criminal Appeals Nos.412 and 413 of 2001, which are directed against the judgment dated 31-8-2001 of a learned Division Bench, High Court of Sindh, Karachi, whereby by a common judgment ATA Appeals Nos.10 and 11 of 2001, preferred by respondents, Muhammad Shafique alias Pappo and Abdul Jabbar alias Zafar, were allowed and Appeal No,12 of 2001 filed by the State was dismissed and Reference No,2 of 2001 for confirmation of death was rejected.
2. It is alleged that on 9-10-2000, Inspector Ali Raza Zaidi of CIA East Karachi, had lodged F.I.R.
No,248/2001 at Police Station Gulistan-eJauhar stating that weapons and explosive substances in large quantity, the details of which are given in the judgment dated 7-2-2001 of trial Court viz. Anti- Terrorism Court No,4, Karachi, were recovered from House No,1/65, Block 14, Guliscan-e-Jauhar.
According to the prosecution, these weapons and explosive substances were secured from beneath two beds, on which respondents Abdul Jabbar and Muhammad Shafique were sleeping.
The police arrested both of them. It is alleged that during interrogation, above named respondents disclosed that they had brought these weapons and explosive substances from India through launches with the help of co-accused namely, Haji Dongar, Hashim, Jumman, Marao and Saleh Muhammad, who were respondents in Appeal No,I2 of 2001 before High Court. According to the prosecution, the respondents of these two appeals further disclosed before the police that they were working for Indian Agency RAW and were also trained by them.
3. On completion of investigation, the charge-sheet was submitted before trial Court for offences punishable under sections 121, 121-A, 122, 123 P.P.C., sections 4, 5 and 6 of Explosive Substances Act, 1908 and section 13-D of Arms Ordinance 1965.
4. At trial, the prosecution examined Syed Ali Raza Zaidi, Inspector C.I.A., Mashir Muhammad Usman, S.I.A. Waseem Ahmed Shah, SIP Sajjad Ali, Moinuddin, Judicial Magistrate Mrs. Nelofer Shahnawaz and Muhammad Saeed Abid was examined as a Court-witness.
5. The respondents in their statements recorded under section 342, Cr.P.C. Deniea the prosecution's allegations and claimed to be innocent. According to respondent Muhammad Shafique, he on 9- 6-2000 was arrested at Lahore, where he had gone to visit Data Darbar, by an agency personnel and from there they brought him to Karachi. Respondent Abdul Jabbar maintained that he was arrested in the second week of April, 2000 and in October, 2000 he was handed over by the agencies to CIA Police East Karachi and, thereafter, this case was foisted upon him and said respondent.
6. On assessm ent of the evidence brought on record, learned trial Court convicted the respondents Muhammad Shafique and Abdul Jabbar and sentenced them to undergo R.I. For 14 years for offences under sections 4, 5 and 6, Explosive Substances Act, 1908 and section 13-D of Arms Ordinance, 1965. They were also sentenced to death for the offences punishable under sections 121, 121-A, 122, 123, P.P.C. They were further sentenced to pay fine of Rs,50,000 or in default thereof to suffer S.I. For one year each. Co accused, who were respondents before High Court in Appeal No,12 of 2001, where acquitted. After hearing in detail learned High Court formulated the following points to decide the fate of these appeals: "(I) Weather the weapons and explosive substances were recovered from possession and control of the appellants in Appeals No, 10 and 11 of 2001? And
(2) Whether these two appellants, and respondents in Appeal No,12 of 2001, were working for Indian Agency RAW and, in any manner, acting against the interest of Pakistan?"
7. The prosecution heavily relied upon the alleged recovery of weapons and explosive substances, judicial confessions of the respondents and their admissions about their involvement in this crime before the police.
8. On the point of recovery, learned trial Court relied upon the testimony of Ali Raza Zaidi complainant and Muhammad Usman Mushir. These witnesses deposed that recovery was effected on 9-10-2000 at about 8-00 a.m. From a room of said house. Learned High Court thoroughly scrutinized the evidence and laid great emphasis on the testimony of Muhammad Saeed Abid, who was examined as a Court-witness.
9. Above witness claimed that he was the owner of the house from where the recovery was allegedly affected. According to him, he had purchased said house in May, 2000 and it was lying vacant since then and that he had not let it out to anybody. Further he deposed that he occupied said house on 1st December, 2000 and before that it was under construction and Chowkidar and other laborers were living in it.
10. Vide order dated 15-11-2001, leave to appeal was granted to consider whether the evidence adduced by the prosecution in support of its case was properly scrutinized by High Court and that whether the provisions of section 5 of Explosive Substances Act, 1908 were kept in view, while delivering the impugned judgment. Said section reads as under:- "5. Punishment for making or possessing explosives 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."
11. It is contended on behalf of the appellant that learned trial Court have thoroughly scrutinized the evidence, yet, High Court on the grounds, which are not sustainable in law, set aside the judgment of trial Court and acquitted the respondents. Learned counsel further argued that High Court seriously erred by placing too much reliance on the testimony of Court-witness named earlier. He also contended that in such type of cases direct evidence of unimpeachable character is almost impossible to collect and leniency is not to be shown to the accused on technical grounds.
12. As against above, learned counsel for the respondents supported the impugned judgment on the basis of evidence available on record.
13. It has been established by the evidence of Muhammad Saeed Abid C.W. That the respondents were neither the owners of said house nor tenants. It being so, it is very hard to believe that they were occupying it and were living therein. Learned High Court specifically noted that despite the fact that it was known to the prosecution that the house belonged to aforesaid witness, yet, no evidence was collected to show that the respondents were in its possession. Neither Chowkidar nor labourers nor neighbors were joined by the investigating agency to demonstrate that ever any of them was seen entering or coming out from it. The alleged recoveries of explosive substances, weighing about 30 k.Gs. a Kalashnikov with 25 live rounds loaded in the magazine from under the mattress of respondent Abdul Jabbar and a wooden box from under said bed of respondent Muhammad Shafique, containing 10 detonators 10 igniters, a T.T pistol loaded with six live rounds, do not inspire confidence, as so much could not be concealed under said mattresses. Besides, Mashir of recovery namely, Muhammad Usman, as rightly held by High Court, was stock witness of the prosecution, as in the cases related to F.I.Rs, Nos. 58, 59, 61, 62, 68 of 1998 and 16 of 1999 he was cited as prosecution witness of recovery. It is a strong circumstance, which creates doubt about credibility of this witness, particularly when other witness Mushir Abdur Rehman was not examined.
14. On the point of confession, it is noted that respondents were produced before learned Magistrate on 10-10-2000, 16-10-2000 and finally on 23-10-2000. It is not explained that as to why on two earlier dates their confessions were not recorded and why on the last date of their remand so was done. It has been argued on behalf of the respondents that they were tortured during the period of police remand and were warned that in case they did not confess their guilt before the Magistrate they would be killed, showing the occurrence as police encounter.
15. It is a matter of common knowledge that now a days so many persons are reported to have died in police encounters. It is true that by a sweeping statement it could not be said that all those killed, as such, were simply the result of maneuvering by the police, showing fake police encounters. Each such case is to be decided on its own merits. On the basis of facts of one case, the fate of other one could not be determined. Primarily, the duty of police is to apprehend the criminals and not to eliminate them by fake or genuine encounters. The fact, however, remains that so many alleged police encounters are enough to scare the persons in police custody to simply act in the way they are directed. To avoid immediate danger of death one can succumb to the pressure.
16. Learned trial Court relied upon the testimony of Inspector Ali Raza Zaidi, who asserted that the respondents, during investigation, stated before him that they were working for Indian Agency RAW and brought these weapons and substances from India. Confession made before a police officer, admitting guilt is not admissible, although the evidence leading to the recovery of any article pursuance to such confession could be produced. Record reveals that no steps were taken by the investigating agency to collect the evidence against the respondents showing their involvement in this crime consequent upon the confession allegedly made before said police officer. Close scrutiny of the evidence conclusively established that the circumstances, which could give rise to a reasonable suspicion against the respondents, were not available to the prosecution. Seriousness of the charge by itself would not absolve the prosecution from its basic responsibilities. It is much more important that right of liberty of an individual shall not be curtailed on presumptive grounds.
Learned High Court has correctly scrutinized the evidence following the principles laid down by this Court in various cases. It is neither a case of misreading, non-reading nor of drawing incorrect conclusion nor the findings could be termed as artificial, shocking or ridiculous.
17. In consequence, both the appeals are dismissed.