RAHMAT HUSSAIN JAFFERI, J.-- We propose to dispose of the above two Special Anti-Terrorism appeals and confirmation case by this single judgment as they are outcome of one and same case and judgment.
2. The present appeals have been directed against the judgment dated 19-7-1999, passed by the Anti-Terrorism Court, Sukkur, in Special Case No,12 of 1999, under sections 302/324/427/334/336/ 34, 337-A(i)(ii)(iii)(iv)(vi), 337-F(i)(v)(iv), P.P.C., Sections 3/4, explosive Substances Act and section 7, Anti-Terrorism Act, by which the learned Judge, had convicted the appellants as follows:--
(a) The, appellants Wasim Ahmad, Arif. alias Kalashin, and absconding co-accused Majid and Shahid Wahab were convicted under section 3 of the Explosive Substances Act read with section 34, P.P.C. and sentenced each of them to death.
(b) The appellants and the two absconding accused were also convicted under section 4 of the Explosive Substances Act read with section 34, P.P.C. to suffer R.I. for ten years.
(c) The appellants and the two 'absconding accused were convicted under section 302(b), P.P.C. read with section 34, P.P.C. and sentenced each of them to death.
(d) The appellants and the two absconding accused were convicted under section 324 'read with section 34, P.P.C. and sentenced to suffer R.I. for ten years each.
(e) The appellants and the two absconding accused were directed to pay Rs,1,75,000 each as Diyat to the legal heirs of five deceased.
3. The trial Court had also sent reference for confirmation of the death sentences awarded under the impugned judgment.
4. The facts giving rise to the present appeals are that on 7-4-1998 at 2-45 a.m. the complainant Ghulam Qadir lodged a report at Police Station, Sakrand alleging therein that he was conductor on Bus No,279-490, which was being plied in between Hyderabad and Nawabshah. On the bus, P.W.
Akbar was driver whereas P.W. Sikandar was cleaner. On 17-4-1998 at about 9-30 a.m. the bus alongwith the above named driver, conductor and cleaner left Hyderabad and proceeded towards Nawabshah. All the seats were fully occupied and many other persons were boarding and alighting from the bus on the way. At about 11-45 a.m. the bus stopped at Rind Petrol Pump, for filling diesel after crossing Sakrand Bus Stand. During the filling of the diesel in the bus suddenly an explosion occurred inside the bus and smoke came out from it, with the result that several persons became injured an died at the spot. Thereafter with the help of people five dead bodies and 25 injured persons were shifted to Sakrand Hospital where they were treated. The complainant then went to the owner of the bus, who directed him to lodge the report; hence the complainant went to the Police Station Sakrand and lodged the report. The police started the investigation, recorded the statements of witnesses and arrested the present appellants. An identification parade of appellant Waseem was held. The appellant Arif was produced before the Judicial Magistrate for recording his confessional statement. After completing the usual investigation a challan was submitted in the Court of law where the appellants were tried and convicted as mentioned above.
5. In order to prove the case the prosecution examined 18 witnesses and produced the relevant documents.
6. The appellants in their statements recorded under section 342, Cr.P.0 denied all the allegations of the prosecution. The appellant Waseem also denied the identification parade. The appellant Arif retracted from his judicial confession. The appellants claimed that they were innocent and were implicated in the case due to enmity. Both the appellants examined themselves on oath. Appellant Arif examined witness Rao Zafarulah Khan. Appellant Waseem examined witnesses Ziaul Abbasi and Mst. Jamila in his defence.
7. We have heard the Advocates for the appellants and the learned A.A.-G. for the State and with the help of Advocates for the appellants perused the evidence. The learned Advocates for the appellants have stated that there are material contradictions in the evidence of witnesses with regard to the boarding of the accused persons in the bus and alighting from it. They have further argued that none of the witnesses has stated that any of the appellants was having plastic bag, which they left in the bus; that the appellant Waseem was kn9wn to the witness but they did not name him in their 161, Cr.P.C. statements and in spite of that identification parade was held which was not required to be done. As regards the confessional statement of the appellant Arif, his Advocate has argued that it was a self-exculpatory confession which has no evidentiary value. The learned Advocates for the appellants have argued that the case has not been proved against the appellants beyond any shadow of doubt by the prosecution, therefore, the appellants are entitled for acquittal.
8. On the other hand, the learned A.A.-G., has argued that the witnesses had seen the appellant Waseem in the bus and was identified by them during the identification parade, therefore, such evidence is sufficient to convict the appellant. He has further argued that though judicial confession is self-exculpatory but an inference can be drawn from that the appellants are involved in the case. He has further argued that the contradictions pointed out by the appellants advocates are minor in nature which have not effected the main incident, therefore, the contradictions can be ignored safely. He has supported the impugned judgment.
9. Advocates for the appellants and the learned A.A.-G. have admitted that the incident, as alleged by the prosecution had taken place which took place on 7-4-1998 at about 11-45 a.m. at the Rind Petrol Pump in which five persons died and 25 persons received injuries. As such on the point of incident and the factum of receiving injuries to the passengers of the bus in which five persons died and 25 persons received injuries have become admitted facts, therefore, this point need not, to be thrashed out further. However, the prosecution have examined seven doctors who produced the post-mortem reports of the deceased and medical certificates of the injured persons as such the factum of death of five persons and receiving injuries on the bodies of 25 persons has been established in this case beyond any shadow of doubt.
10. Now the point arises as to whether the appellants had planted bomb in the bus which exploded at Rind Petrol Pump and incident occurred. In order to prove the involvement of the appellants the prosecution examined Ghulam Qadir, conductor of the bus. He stated that at about 11-30 a.m. the bus reached at Sakrand where some passengers boarded and some passengers alighted from it and then they proceeded towards Nawabshah but when the bus reached at Rind Petrol Pump at about 11-45 a.m. the incident occurred. This witness has not implicated any of the accused persons.
11. The second witness examined by the prosecution on the "above point was Muhammad Nawaz.
He was one of the passengers of the bus. He stated in his statement that on 7-4-1998 he boarded the bus from Sakrand for going to Nawabshah for shopping purpose to celebrate Eid but when the bus reached at Rind Petrol Pump at about 11-45 a.m. this incident took place. He further stated that after the arrest of the appellant Waseem an identification parade was held through him before the Civil Judge and FCM where he correctly picked out the appellant Waseem. From this evidence it is clear that the witness had just identified the appellant Waseem in the identification parade but he did not assign any role to the appellant Waseem either of seeing him in the bus or having any plastic bag in his hands. In the cross-examination he admitted that he knew Waseem prior to this incident. From this admission it can very well be gathered that he merely identified appellant Waseem in the identification parade to be Waseem. In such circumstances the identification of appellant Waseem through this witness was not required. As such his evidence is' of no help to the prosecution in cbnnecting the appellant Waseem with the commission of this crime.
12. The third witness examined by the prosecution on the above point was Sahib Khan. He was one of the passengers of the bus. He stated that on 7-4-1998 at about 11-30 a.m. he alongwith P.W.
Muhammad Nawaz boarded the bus at the bus stop of Motal Hotel for going towards Nawabshah; that on the way some persons alighted and some persons boarded in the bus; that thereafter the bus stopped near Railway Crossing, again some passengers alighted and some persons boarded the bus and when the bus reached at Rind Petrol Pump this incident occurred. He further stated that appellant Waseem was known to him prior to this incident; that he identified him in the identification test before the Civil Judge and F.C.M. He further deposed that appellant Waseem alongwith two persons were present in the bus, out of them, one was having a plastic shopping bag but the said persons alighted from the bus before the Rind Petrol Pump and at that time the person Who was holding the bag had the bus without the said bag.
13. From his evidence it is clear that the shopping bag was not in the hand of appellant Waseem, but it was in the hand of one of the two unknown persons. This witness has not stated as to at which bus stop the appellant and two persons boarded the bus nor he has shown at which bus stop they alighted from it. However, his evidence only shows that appellant and two persons were found present in the bus and out of the two unknown persons, one was having shopping bag and when the said three persons alighted from the bus the shopping bag was not with the person who was holding it.
14. However, the bus stop from which the appellant and two unknown persons boarded and alighted from the bus and as to who, out of two unknown persons was, holding the plastic bag has been clarified by P.W. Sikandar Ali. who was as cleaner of the bus. He stated that when the bus reached at Motal Hotel Chowk some persons boarded the bus and some passengers alighted from it. Out of them two passengers boarded from the front gate and one passenger boarded from the rear gate of the bus. The person who boarded from the rear gate was having a plastic shopping bag of black colour in his hand and thereafter the bus proceeded to Nawabshah side. When it reached railway crossing the said passengers who boarded from Motal Hotel alighted from the bus but when the bus reached at Rind Petrol Pump and the diesel was being filled in the incident took place. The identification test of appellant Waseem was held, in which he identified him in the said test, but he did not clarify in his identification parade about the role played by the appellant Waseem at the time of boarding the bus or alighting from it. Thus, it has been established through the witnesses Sahib Khan and Muhammad Nawaz that appellant Waseem was not holding the black plastic shopping bag but it was held by one unknown person. In such situation, if the appellant Waseem was identified by this witness in the identification parade, it only shows that the appellant Waseem was present in the bus and alighted from it. From his evidence it is clear that appellant Waseem and another person boarded the bus from the front gate whereas an unidentified person who was having the plastic bag boarded the bus from the rear gate. This by itself clearly shows that there was no connection whatsoever between both the sets of the persons, one boarded from rear gate and another from front gate, as such it cannot be said that they were together and 'responsibility of holding a plastic bag can be shifted to other persons Who boarded from the another gate of the bus. According to P.W. Sahib Khan, P.W. Muhammad Nawaz, they also boarded the bus from the same bus stand, therefore, if the persons boarded on the said bus stop then each and every person cannot be held responsible for other persons who boarded from the said bus stop, unless some connection is shown between them, which the prosecution have failed to do so in this case.
15. The next witness examined by the prosecution is Akbar. He was driver of the bus. He had not stated anything with regard to the passengers but stated that the bus was full of passengers and he was not able to see from the mirror. He stated that P.W. Sikandar Ali informed him in the hospital that a person holding a black colour shopping bag boarded the bus but when he left the bus he was not having the said bag, as such his evidence is not material on the above point and is of no help to the prosecution in connecting the appellants with the incident of this case.
16. P.W. Saeed Khan was examined by the prosecution. He was Mashir of identification parade. He stated that one person was identified by the P.Ws. before the Civil Judge and FCM. He did not give the names of witnesses, who identified the appellants.
17. From the above evidence it is clear that the prosecution has failed to connect the present appellants with the person who was holding the plastic bag in his hand, who was seen by the witnesses in the bus and alighted from it leaving the said plastic bag in the bus. There is no evidence whatsoever about the contents of the said plastic bag nor the prosecution has proved any such fact. However, the prosecution has only presumed that the said plastic bag might be containing bomb which exploded in the bus at the Rind Petrol Pump. Be that as it may, this by itself is not enough to connect the present appellants with the commission of the crime. The prosecution is required to prove the involvement of the present appellants with the commission of this crime through strong evidence either direct or circumstantial and for that purpose they have tried to prove through their witnesses but unfortunately the statements of witnesses. as discussed above, are not sufficient to connect the appellants with the commission of this crime. As such the prosecution have failed to prove the above piece of evidence against the appellants.
18. Now we will come to the confessional statement of P.W. Arif. In order to support this piece of evidence, the prosecution examined Imdad Hussain, Civil Judge and FCM. He stated that on 18-4- 1998 the appellant Arif was produced before him for recording of his confession which he did after performing all the necessary formalities of law. The confessional statement has been produced in evidence as Exhibit 33/A. A perusal of the confessional statement shows that this is a self- exculpatory confession. The appellant Arif did not assign any role for himself in the commission of this crime but on the contrary he stated that due to fear and threat of the appellant he saw the culprits putting the bomb and connecting its wires.
19. Thus the self-exculpatory confession of the to appellant has no evidentiary value. It has been held in Pervaiz Iqbal v. The State PLD 1976 Karachi 583 that self-explanatory confession cannot be regarded as a confession and it is of little value even, against its maker. As such the prosecution has failed to prove the above piece of evidence against the appellant Arif.
20. The other witnesses examined by the prosecution are not material on the point as they are formal. The prosecution examined Muhammad Mithal. He as Head Constable and reached the place of Incident and took the dead bodies to the hospital He also acted as Mashir of arrest of appellant Arif, who was arrested on 18-4-1998. at about 4-10 p.m. He also acted as Mastiff of arrest of appellant Waseem, who was arrested on 20-4-1998 ,at about 5-30 p.m. The next witness. examined by the prosecution was Ali Muhammad. He was Tapedar. He prepared the sketch of the Vardat. The next witness examined by the prosecution was Naik Muhammad. He was Incharge, Bomb, Disposal, Special Branch in Sukkur. He examined the bus at the Rind Petrol Pump and formed the opinion that the bus was damaged because of explosion of bomb. The last witness examined by the prosecution was Muhammad Ashfaque. Investigation Officer. He conducted the investigation of the entire case. The remaining witnesses are medical officers, who conducted the post-mortem examination of five dead bodies and issued medical certificates of 25 injured persons.
20. The appellant Muhammad Arif stated in his statement on oath that on the day of incident he was present at his shop. After the incident several boys of various political parties were arrested but subsequently they were released. After 3/4 days of the incident his house was raided and his parents were arrested but he was not present on that date. Subsequently, he was produced by D.W. Rao Zafarullah and Tanveer Khanzada, District President of Khidmat Committee and then he was involved in this case, in his support he examined Rao Zafarullah, who supported the- contention of the appellant. The appellant Waseem, in his statement on oath stated that on the day of incident he was present in the office of Shalimar Coach situated at National , Highway, Sakrand. He came to know about the incident subsequently and he was involved in this case falsely. In his support he examined D.W. Zainul Abiden, who stated that appellant Waseem was present in the office of Shalimar. Bus Service as he reached there at about 11-35 a.m. and remained there up to 11-45 a.m. The appellant was present , there. The second witness examined by him was Mst. Jamila. She was one of the passengers of the bus. She stated that she travelled in the bus which 'did not" stop at any place in between Sakrand and Rind Petrol Pump, where the blast occurred in the bus. The defence version has been amply supported and corroborated by the witnesses.
21. After scrutinizing the evidence available on the record, we are of the considered view that the prosecution have failed to connect the present appellants with the commission of this crime, therefore, they are acquitted and set at liberty. The impugned judgment is set aside.
22. By our short order dated 25-9-2002, we had allowed the Special Anti-Terrorism Appeals, above are the reasons of the same.