1. ' MEHTA KAILASH NATH KOHLI, J.--- This appeal is directed against judgment, dated 6th February, 2006, passed by the Judge, Anti-Terrorism Court, Sibi Nasirabad Division, Sibi at Dera Murad Jamali, in Anti-Terrorism Case No,12 of 2005, whereby; appellants Dhani Bakhsh son of Muhammad Ramzan and Abdul Sattar son of Ghaus Bakhsh along with absconding accused Ali Gut son of Lashar Khan, have been convicted under section 3 of Explosive Substances Act, 1908 read with section 7(b) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life, in addition to above sentence, the properties belonging to convicts were also ordered to be forfeited to Government.
2. ' Facts of the case, in brief, are that a Murasla for registration of case under sections 3/4/5 of Explosive Substances Act read with section 7 of the Anti-Terrorism Act, 1997, was sent by complainant Naseebullah Khosa, I.P./S.H.O., to Officer Incharge, Police Station Dera Allah Yar, wherein; it was alleged that on 26th April, 2005 at 5-30 p.m. D.P.O. Jaffarabad through wireless information ordered the authorities of Police Station Dera Allah Yar that Constable Faqir Muhammad posted in office of D.P.O. Has informed that in front of MMD Office, some one has fixed a bomb at Railway Track, as such, directions were made to immediately reach at the spot and stop the trains coming on that track, as well as, Assistant Station Master Dera Allah Yar be accordingly informed, not to leave the trains from railway station. On receipt of said information, complainant along with Sub-Inspector Abdul Ghani (duty Officer), Sub-Inspector Akbar Ali, Sub-Inspector Soomar Khan and other police constables namely Ali Gohar, Muhammad Punhal, Noor Ahmed, Abdul Ghani, Muhammad Aslam and Ghulam Sarwar, in official vehicle departed from police station and reached the spot at 5-40 p.m., in the meanwhile; Abdul Lateef Baloch S.D.P.O./D.S.P. And D.S.P. Along with protection team reached at the spot and found a bomb lying with the railway track. The bomb was removed by Head Constable Allah Rakhia and while keeping it on the ground, the same blasted, in result whereof; Sub-Inspector Abdul Ghani, Head Constable Allah Rakhia, Head Constable Munawar Shah, Head Constable Bakht Ali (driver) and a civilian namely Abdul Sattar Bhangar sustained simple injuries. It was further alleged that the blast had caused about 1- 1/2 feet hole in the ground, and; on account of blast the pieces of bomb were not available. Motive behind the incident was alleged that unknown accused persons are causing loss to the railway track, in case, the police had not reached the spot in time, there was apprehension of heavy casualties: Consequent upon said Murasla F.I.R. No,79 of 2005 dated 26th April, 2005 under above mentioned sections was registered with Police Station Dera Allah Yar District Jaffarabad. Record contemplates that some suspected persons including convicts-appellants were arrested, and; out of three accused persons, convicts-appellants were identified by constable Faqir Muhammad.
3. After completion of investigation, challan of the case was filed in the competent Court of jurisdiction. Learned Judge Anti-Terrorism Court, Sibi took cognizance in the matter. On 5th September, 2005, charge was framed to which convicts-appellants pleaded not guilty and claimed trial.
4. ' The prosecution in support of its case has produced following evidence:-- 'P.W.1 Inspector Naseebullah Khosa, S.H.O. Police Station Dera Allah Yar (complainant) appeared while reiterating the version of Murasla had further deposed that due to blast, 1-1/2 x 1-1/2 feet hole was made on the ground, as such; no piece of bomb was available. It was deposed that on the basis of Murasla (Exh.P.1/A), F.I.R. (Exh.P.1/B) was registered. Investigation of the case was handed over to Sub-Inspector Soomar Khan; during course of investigation on 4th July, 2005, accused persons having found suspected were brought to police station, where in presence of D.S.P./S.D.P.O.
5. Dera Allah Yar Circle, identification parade was made by constable Faqir Muhammad, who identified accused persons responsible for the commission of offence, in this regard identification map (Exh.P.1/C) was prepared. It was deposed that on 17th July, 2005 during course of investigation, accused persons made disclosure with regard to the commission of offence; in presence of witness and D.S.P., disclosure memo. Was prepared. The accused persons also made disclosure of place of incident, which was the same, as such; disclosure memo. (Exh.P.1/D) and site inspection map (Exh.P.1/E) on the disclosure of accused persons was prepared. It was deposed that on 18th July, 2005, accused persons recorded their statements under section 164, Cr.P.C. Before D.P.O. And on the same day they were remanded to judicial lock-up. The Investigating Officer after completion of investigation handed over case file to the witness, thereafter; incomplete challan (Exh.P.1/F) was prepared.
6. ' In cross-examination, witness stated that he and D.S.P. Along with D.P.O. Together had reached the spot. It was stated that neither fire-brigade nor ambulance were called. It was further stated that bomb was lying under the railway track; it was also stated that there was no population along both sides of the railway track. He denied the suggestion that in between MMD Office and railway track, old vehicles were parked; voluntarily stated that the vehicle was parked inside the boundary wall.
7. Witness stated that he had not called Bomb Disposal Squad. It was admitted that neither witness nor any other police officials had taken into possession anything from the place of incident. It was stated that the bomb blasted at a distance of 3/4 yards from the railway track. It was further stated that civilians were present around the place of incident. Witness stated that accused Dhani Bakhsh was arrested from his house while accused Abdul Sattar was arrested by constable Sikandar from a place situated near Sohbat Pur Gate. It was stated that at the time of identification parade, witness was present in the police station. The identification parade was made three times and the accused persons were made to stand at different places. It was stated that including accused persons, eight persons i,e, police officials, civilians and accused persons detained in the police station were associated in identification parade. Witness denied the suggestion that no identification parade was made. It was stated that in presence of witness and D.S.P. As ' well as, Investigating Officer,. Accused persons had made disclosure in Police Station Cattle Farm. It was further stated that they along with accused persons and witnesses had reached the place of incident. It was stated that witness had not produced the accused persons before D.S.P. For recording their confessional statement. Witness did not know the house of accused Abdul Sattar.
8. He denied the suggestion that house of accused Abdul Sattar situated behind the office of D.P.O.
9. Was demolished; voluntarily stated that said place was occupied by way of boundary, which was removed by the witness. He also denied the suggestion that one Sabir Ali had informed him that one unknown person had left something near the railway track. He also denied that said Sabir Ali was awarded cash prize by the D.P.O. Jaffarabad. He denied the suggestion that house of Sabir Ali was situated behind the office of D.P.O. Witness showed his ignorance that brother of Dhani Bakhsh through application addressed to District Nazim Jaffarabad had sought permission that a mobile phone company intends to install a tower in his house, however, he denied that said application was referred to D.P.O., which was marked to the witness. He admitted that tower of mobile phone is installed in the house of Dhani Bakhsh's brother. Witness showed that brother of accused Dhani Bakhsh had contested election from PB-21 Jaffarabad in the year 1996 and also showed his ignorance that in Local Government Elections 2001, accused Dhani was a candidate for the seat of General Councillor. Witness showed his ignorance that accused. Dhani Bakhsh was watchman of the tower of mobile phone. Witness denied that prior to installation of mobile phone tower, he and brother of accused Dhani Bakhsh had a quarrel. He denied the suggestion that as brother of accused Dhani Bakhsh is a social worker and used to criticize on police department, as well as, other institutions, as such; on the basis of said grudge, his brother i,e, Dhani Bakhsh was involved in the present case. Witness showed his ignorance that at the time of occurrence, accused Dhani Baldish was admitted in an eye hospital at Karachi. He denied the suggestion that to take revenge from brother of accused, accused Dhani Bakhsh has been involved in the case, while accused Abdul Sattar has been involved for the reason that he had raised encroachment behind the office of D.P.O. He denied the suggestion that he himself had made Faqir Muhammad as witnesses and also denied that said Faqir Muhammad had not seen any person. The suggestion was denied that absconding accused Ali Gul has falsely been involved in the case and denied that he is innocent.
10. He further denied the suggestion that he has deposed falsely.
11. 'P.W.2 Faqir Muhammad (constable) posted in D.P.O. Office Dera Allah Yar is the eye-witness. He has deposed that on 26th April, 2005, he had seen a bomb near the railway track, he went ahead and on confirmation, returned back and informed his higher officer, who immediately reached the spot. It was deposed that witness had not seen any person, as well as, also deposed that no identification parade was made before him. He did not identify the accused persons present in the Court. Note. This witness became hostile, as such; Public Prosecutor was allowed to cross-examine the said witness.
12. ' In the cross-examination, this witness stated that in his statement under section 161, Cr.P.C. He had not stated that he had seen three persons, who had kept something wrapped in polythene bag near the railway track; he could identify the said persons, if seen. It was stated that during course of identification parade, he has not called, while his signatures were obtained on a plain paper. It was further stated that he had not identified the accused persons present in the Court. He denied the suggestion that due to fear from accused persons, he is not making correct deposition; voluntarily stated that he on his own free-will is making deposition. He denied the suggestion that he has concealed the real facts from the Court. He also denied the suggestion that being police man, he has made a deal with accused persons; voluntarily stated that he has no knowledge about the incident.
13. 'P.W.3 Allah Rakhia (Head Constable) deposed that on 26th April, 2005, he was deputed as Gunman of D.P.O. Jaffarabad. D.P.O. Jaffarabad and S.D.P.O. Dera Allah Yar along with driver, reached the place of occurrence i,e, railway track situated in between backside of D.P.O. Office and MMD Office.
14. This witness had removed the bomb fixed under the railway track and walked at some distance; the alleged bomb blasted in result whereof; witness, Bakhsh Ali, Munawar Shah, Abdul Ghani and Abdul Sattar sustained injuries. In the meanwhile, Constable Faqir Muhammad stated that he had seen three persons, taking out something from polythene bag and kept the same near railway track, whom he could identify if seen.
15. ' In cross-examination, witness stated that prior to his reaching at the spot, I.P./S.H.O. Along with Sub-Inspector Akbar Ali, Sub-Inspector Abdul Ghani, Sub-Inspector Soomar Khan and other persons were present there. It was stated that only Abdul Sattar amongst civilians was present at the spot, who was coming out from MMD Office. It was further stated that no house was situated near the railway track. The bomb was fixed beneath the railway track, which he removed and kept at a distance of three yards from the track, which suddenly blasted. Witness stated that his statement was recorded at the spot when he was injured. He denied the suggestion that no proceedings were made in his presence and also denied that the whole proceedings were made in the police station. He denied that he has deposed falsely.
16. ' P.W.4 Abdul Raheem Jamot District Police Officer, Jaffarabad appeared in witness-box and deposed that on 18th July, 2005, Soomar khan Investigating Officer along with two accused persons namely Abdul Sattar and Dhani Bakhsh came to his office, where he submitted written application (Exh.P.4/A), alleging therein that the accused persons in F.I.R. No,79 of 2005, registered under sections 3/4/5 of Explosive Substances Act read with section 7 of Anti-Terrorism Act, 1997, are willing to record their confessional statements. Witness further deposed that after providing half an hour to the accused persons far thinking and were provided comfortable atmosphere, and; again after asking that the accused persons are willing to give their confessional statements, their statements were recorded, thereafter; confessional statements of both the accused persons were separately recorded. Accused Abdul Sattar in his statement recorded under section 164, Cr.P.C.
17. (Exh.P.4/B), wherein; he had made confession of railway bomb blast. Relevant portion of statement of accused Abdul Sattar recorded under section 164, Cr.P.C. Is reproduced hereinbelow:--{{URDU TEXT}} ' After recording statement of accused Abdul Sattar, the same was sealed in envelope (Exh.P.4/A), witness produced statement of accused Abdul Sattar recorded under section 164, Cr.P.C.
18. (Exh.P.4/C), certificate (Exh.P.4/D) issued by the witness. It was further deposed that on application (Exh.P.4/E) submitted by S.H.O. Railway Police Station Sibi, copy of the confessional statement of accused Abdul Sattar was provided to him. Thereafter, statement of accused Dhani Bakhsh under section 164, Cr.P.C. Was recorded. Relevant portion of the same is reproduced hereinbelow:-- {{URDU TEXT}} ' After completion of statement the same was sealed in envelope (Exh.P.4/F). Witness produced report of Investigating Officer (Exh.P.4/G) and statement of accused under section 164, Cr.P.C.
19. (Exh.P.4/H) and certificate (Exh.P.4/J). He had also given copy of the said statement to S.H.O. Police Station Railway. Thereafter both the accused persons were sent in the Court of Judicial Magistrate for their remand to judicial lock-up. He identified accused persons present in the Court.
20. ' This witness was thoroughly cross-examined. He stated that confessional statements of accused persons were recorded after fifteen days of their arrest. He admitted the suggestion that at the time of recording statements of accused persons under section 164, Cr.P.C. He was wearing official dress and was present in his office. Witness admitted the suggestion that in Dera Allah Yar, Dera Murad Jamali, Usta Muhammad, Chattar and Gandawah, Courts of Judicial Magistrate are functioning; voluntarily stated that he did not know that Court of Judicial Magistrate is functioning in Chattar. It was stated that prior to the present case. He had not recorded statement of any accused person under section 164, Cr.P.C. Witness further stated that prior to recording statements of accused persons, they were not given oath. He admitted the suggestion that after recording of their statements, custody of accused persons were handed over to the police officials; voluntarily stated that they were his bodyguards. He admitted the suggestion that the officials of Investigating Agency are his subordinates; voluntarily stated that another S.P. Was deputed for investigation. He further admitted that brother of accused Dhani Bakhsh had submitted an application to District Nazim seeking permission for installation of mobile phone tower and also admitted that he had forwarded the said application to S.H.O. Police Station Dera Allah Yar. He showed his ignorance that on said application there occurred quarrel between accused Dhani Bakhsh's brother and S.H.O.
21. Naseebullah; voluntarily stated that he had contacted the District Nazim on telephone and told him to grant permission for installation of tower. He admitted the suggestion that on backside of his office, but shape houses were constructed, which were demolished; while he did got remember that house of accused Abdul Sattar was also situated there. He denied the suggestion that accused persons had not recorded their confessional statements. He further denied that in collusion with S.H.O., the whole proceedings were drawn in the police station. He denied the suggestion that on the basis of enmity with brother of accused Dhani 'P.W.5 Amanullah Sub-Inspector Police Station Dera Allah Yar deposed that on 17th July, 2005 he along with Haji Ali Nawaz A.S.-I. Was present in the police station; in Investigation room Naseebullah Khosa, D.S.P. Lateef Baloch and Sub-Inspector Soomar Khan were interrogating the accused persons. Both the accused persons made confession that on backside of the office of MMD Jaffarabad, they along with their third companion namely Ali Gul son of Lashar had fixed a hand grenade beneath the railway track. The motive behind the said act was statedly alleged that army had launched operation against Bugti Tribe, and; to agitate the same, they had committed the said act on the pretext to damage the railway track and the passengers sustain loss, for which, their Nawab will be pleased. On such disclosure, police authorities accompanied the accused persons to the place of incident i,e, railway track, where the accused persons pointed out the place ,of incident. Sub-Inspector Soomar khan had prepared site plan, as well as, site inspection memo.
22. Was also prepared. Witness identified site inspection memo. (Exh.P.1/D) to be the same. He also identified accused persons present in the Court.
23. ' In cross-examination, witness stated that accused persons made disclosure at 10-00 a.m. And they had visited the place of incident at 12-30 p.m. It was stated that on seeing police party, people i,e, 20/25 persons of the vicinity gathered there, statement of none of the said persons was recorded. He denied that accused persons had not made any disclosure. He also denied that he has deposed falsely.
24. 'P.W.6 Ali Gohar Constable Police Station Dera Allah Yar deposed that on 26th April, 2005, he was present in the police station; through wireless control, information was received that on backside of S.P. Office, something wrapped in polythene was lying on the railway track, on receipt of said information, he along with S.H.O. And other security officials reached at the spot, where in a polythene bag, bomb was found, which was removed by Allah Rakhia and kept on a side, after two minutes the bomb blasted, in result whereof; Allah Rakhia, Munawar Shah, Bakhsh Ali, Abdul Ghani and Abdul Sattar had sustained injuries. S.H.O. Had written Murasla with regard to the incident and was sent to police station through Abdul Ghani, consequently; Soomar Khan was deputed as Investigating Officer. It was further deposed that Soomar Khan had inspected the site, in this regard site inspection memo. (Exh.P.6/A) was prepared, thereafter; injured persons were shifted to hospital, where one black coloured shirt of Abdul Ghani and one commando Banyan of Allah Rakhia were handed over to Soomar Khan, which were taken into possession through recovery memo. (Exh.P.6/B).
25. ' Witness identified black coloured shirt (Article 1) and Banyan (Article-2) to be the same.
26. ' In cross-examination, this witness stated that on receipt of information, he along with Naseebullah S.H.O. And Punhal had reached the spot; other police officials had also reached there at the same time. It was stated that after the blast, 40/50 persons gathered there. It was stated that houses are located near to the railway track. It was further stated that on backside of D.P.O. Office 3/4 houses were located. Witness stated that his statement was recorded by Soomar Khan, while he showed his ignorance that apart from him statement of any other person was recorded. It was stated that Soomar Khan had shifted the injured to hospital in official vehicle. Witness denied the suggestion that all the proceedings were made in the police station. It was denied that on the basis of dispute over installation of mobile phone tower with accused Dhani Bakhsh's brother, Naseebullah Khosa had involved accused Dhani Bakhsh and Abdul Sattar in a false case.
27. 'P.W.7 Munawar Hussain Shah, Head Constable Special Branch, Dera Allah Yar appeared in witness- box and deposed that on 26th April, 2004, he was posted as Incharge Special Branch and while performing his duties, he was roaming in Bazar. It was further deposed that through wireless set, information was received that on backside of MMD Office, a bomb was fixed beneath the railway track; on receipt of said information witness reached at the spot. The bomb was concealed in polythene bag, which was removed and kept on a side, in the meanwhile the bomb blasted, in result whereof; witness, Allah Rakhia (constable), Bakhsh Ali (driver), Sub-Inspector Abdul Ghani Soomro, Abdul Sattar Bhangar (MMD) had sustained injuries. It was deposed that they all boarded in official vehicle and proceeded towards Civil Hospital Dera Allah Yar. It was further deposed that on arrival of witness at the spot, Faqir Muhammad (constable) told him that three unknown persons had fixed the bomb and had gone towards Shahi Chowki.
28. ' In cross-examination, witness stated that after the blast no private person had reached at the spot in his presence, thereafter; they were shifted to hospital. Witness stated that he had gone to hospital on his motorcycle, while other persons were taken to hospital by Sub-Inspector Abdul Ghani; the witness had sustained simple injuries, as such, he was not admitted in the hospital; voluntarily stated that Allah Rakhia remained admitted in the hospital. It was stated that on the next day of incident, his statement was recorded. He denied the suggestion that Faqir Muhammad had not disclosed anything. He also denied that he had not visited the place of incident. He denied the suggestion that he has deposed falsely. It was stated that witness while recording his statement under section 161, Cr.P.C., had not stated that three unknown persons on fixing the bomb had proceeded towards Shahi Chowki.
29. 'P.W.8 Abdul Ghani, Sub-Inspector Police Station Dera Allah Yar deposed that on 26th April, 2005, information was received that in front of MMD Office a bomb was fixed near railway track. On reaching the spot, bomb was found in a polythene bag lying with railway track, which was removed by Head Constable Allah Rakhia and kept the same on smooth surface, after few moments the bomb blasted, in result whereof; witness, Munawar Shah, Allah Rakhia, driver of MMD Office namely Abdul Sattar Bhangar and Bakhsh Ali sustained injuries. The injured persons were shifted to hospital, and; the I.P./S.H.O. Sent Murasla to police station and Soomar Khan Jamali was deputed as Investigating Officer. In the meantime, constable Faqir Muhammad stated that he had seen three persons fixing the bomb, whom he could identify, if seen. Witness stated that his shirt was taken into possession by police officials.
30. ' In cross-examination, this witness admitted that none of the injured persons were unconscious. It was stated that firstly Murasla was prepared thereafter they were shifted to hospital. Witness stated that in the evening his statement was recorded in the hospital; apart from him, statements of Munawar Shah, Allah Rakhia, Abdul Sattar, and Bakhsh Ali were also recorded in Civil Hospital Dera Allah Yar.. He stated that in his statement under section 161, Cr.P.C. He had stated that police had taken into possession his shirt (confronted, not so recorded). He denied the suggestion that Faqir Muhammad had not told that he had seen three persons fixing the bomb. He also denied that the said information was given by one Sabir Ali. It was stated that on one side of the railway track, houses were situated; voluntarily stated that the houses were situated at a distance of one kilometer. He denied that he has deposed falsely.
31. 'P.W.9 Bakhsh Ali, Head Constable (driver) D.P.O. Jaffarabad deposed that on 26th April, 2005, they were present at the residence of D.P.O.; an information was received that on backside of MMD Office, something was lying on railway track. It was further deposed that gunman of D.P.O. Namely Allah Rakhia had removed the bomb from railway track and kept the same on a side, which blasted after 5/10 minutes, resultantly; witness along with Allah Rakhia, Munawar Shah and Abdul Ghani had sustained injuries and they were shifted to hospital. It was further deposed that driver of MMD Office also sustained injuries. After providing medical treatment, they were discharged from hospital.
32. ' In cross-examination, he stated that no private person was present at the spot. It was stated that the railway track goes from Quetta to Jaccobabad i,e, west to east. It was further stated that on the day of incident, their statements were recorded at the spot. Witness stated that in his statement under section 161, Cr.P.C. He had stated that the bomb blasted after 5/10 minutes (confronted, not so recorded). He denied the suggestions made in favor of accused persons. He also denied that he has deposed falsely.
33. 'P.W.10 Dr. Sri Chand, Medical Officer, D.H.Q. Dera Allah Yar appeared in witness-box and deposed that on 26th April, 2005 at 6-35 p.m. Injured person's namely Allah Rakhia, Abdul Ghani, Munawar Shah, Abdul Sattar and Bakhsh Ali were brought in hospital with the history of explosion. The witness provided medical aid to the injured, while injured Allah Rakhia was kept in hospital for one day.
34. After examination of injured persons, witness had issued medical certificates (Exhs.P.10/A to 10-E) respectively.
35. ' In cross-examination, witness stated that first of all injured Allah Rakhia was brought in the hospital and thereafter other injured persons were brought. The injured persons themselves came to the hospital, while D.P.O. And D.S.P. Were not accompanying them. Witness admitted that he is not expert in explosive material. He admitted that he himself had not seen the explosion. He denied the suggestion that he was not able to introduce the injuries caused in result of explosions. It was stated that the injuries were fresh. He gave his opinion that six hours injuries are considered to be fresh injuries. He denies that he had not examined any injured person. It was further stated that the police had recorded statements of injured persons. He denied that he has deposed falsely.
36. 'P.W.11 Abdul Lateef, S.D.P.O./D.S.P. Dera Allah Yar appeared in witness-box and deposed that on 4th July, 2005, he, Inspector Naseebullah (S.H.O.) and Sub-Inspector Soomar Khan (Investigating Officer) were present in the police station; in their presence, identification parade of accused Dhani Bakhsh son of Ramzan and Abdul Sattar son of Ghaus Bakhsh, cast Bugti was made by constable Faqir Muhammad (eye-witness), who had identified both the convicts-accused to be the same persons, who after fixing the bomb on railway track, had fled away. It was further deposed that Investigating Officer had completed Identification Parade Form (Exh.P.1/C). This witness also deposed that on 17th July, 2005 in presence of witnesses Amanullah (A.S.-I), Ali Nawaz (A.S.-I), S.H.O.
37. And Investigating Officer, accused had made disclosure with regard to place of incident; in this behalf, site inspection/disclosure memo. (Exh.P.1/D), as well as, site plan (Exh.P.1/E) were prepared.
38. He had identified accused persons present in the custody.
39. ' In cross-examination, witness stated that he and D.S.P. Had supervised the whole proceedings. It was further stated that from the date of arrest and remand to judicial lock-up, accused persons were detained in Cattle Farm Police Station. He denied the suggestion that Faqir Muhammad had not identified the accused persons, nor identification parade was conducted. He further denied that signature of Faqir Muhammad was obtained on a plain paper. Witness did not remember that S.H.O. Had recorded his statement under section 161, Cr.P.C. He showed his ignorance that whether Investigating Officer had obtained thumb-impression of accused persons on site inspection memo. It was stated that place of incident was situated at a distance of 400/500 yards from highway. It was further stated that no private witness had come at the spot. He had denied the suggestions made in favor of accused persons and also denied that he has deposed falsely.
40. 'P. W.12 Soomar Khan, Sub-Inspector (Investigating Officer) appeared in, witness-box and deposed that on 26th April, 2005, he was present in Police Station Dera Allah Yar. On receipt of wireless information, he along with S.H.O. And other police officials had reached the place of incident, where bomb was fixed on railway track; the said bomb was removed by Head Constable Allah Rakhia and kept on ground, which blasted, causing injuries tq Head Constable Allah Rakhia, Sub-Inspector Abdul Ghani, Head Constable Bakhsh Ali, Munawar Shah (Special Branch) and one citizen namely Abdul Sattar Bhangar. The injured were shifted to hospital and the S.H.O. Had sent Murasla (Exh.P.1/A) for registration of case against unknown accused persons, consequent upon which, F.I.R.
41. (Exh.P.1/B) was registered, and; investigation of the case was handed over to this witness. During course of investigation, witness had prepared site inspection memo. (Exh.P.6/A), site disclosure plan (Exh.P.l/E), site plan (Exh.P.12/A). He had also recorded statements of witnesses, thereafter; he went to Civil Hospital Dera Allah Yar, where he had recorded statements of injured persons under section 161, Cr.P.C. And took into possession blood-stained clothes of injured through recovery memo. (Exh.P.6/B). It was further deposed that on 4th July, 2005, accused Dhani Bakhsh and Abdul Sattar were arrested, and; constable Faqir Muhammad was called who had identified the accused persons in identification parade and Identification Parade Form (Exh.P.1/C) was accordingly prepared. On 17th July, 2005, accused persons made disclosure that of the place, where they had fixed the bomb, in this regard disclosure memo. (Exh.P.1/D) and site map (Exh.P.1/E) were prepared.
42. Witness had obtained medical certificates of injured persons and on 18th July, 2005 statements of accused persons under section 164, Cr.P.C. (Exhs.P.4/C and P.4/D) were recorded. On completion of investigation, incomplete challan (Exh.P.1/F) to the extent of present convicts was prepared and on receipt of medical certificate of injured Allah Rakhia (Exh.P.10/A), supplementary challan (Exh.P.12/B) was prepared. Thereafter, he had obtained prosecution sanction order (Exh.P.12/C) from Home Department and in this regard supplementary challan (Exh.P.12/D) was prepared. Witness had identified the accused persons present in the Court.
43. ' In lengthy cross-examination, witness stated that there was no population near to the railway track; voluntarily stated that one village was situated at some distance. It was further stated that after blast, none of the officials from nearby office had reached at the spot; voluntarily stated that Abdul Sattar employee of MMD Office reached there, who had sustained injuries and was taken to hospital by Sub-Inspector Akbar. Witness further stated that the whole proceedings were drawn at the spot. Accused Dhani Bakhsh was arrested from near to Masjid-e-Aqsa, while accused Abdul Sattar was arrested from Sim Shakh Goth; the accused were arrested on 4th July, 2005, and; identification parade of accused persons was made on the same day. It was stated that from 4th July, 2005 till 18th July, 2005 accused persons were kept in Police Stations Dera Allah Yar and Cattle Farm. It was further stated that accused persons made disclosure in Police Station Dera Allah Yar".
44. Witness showed his ignorance that on 18th July, 2005, visit of Chief Minister, Balochistan was scheduled in Jaffarabad-Nasirabad. He also stated that accused themselves had shown their willingness to record their confessional statements. He stated that he had made verbal request to the D.P.O. For recording confessional statements of accused persons. He denied the suggestions made in favor of accused persons, and; also denied that he has deposed falsely.
45. ' After close of prosecution evidence, statements of convicts-appellants were recorded under section 342, Cr.P.C. Wherein; they have pleaded their innocence. They did not record their statements on oath, however, produced D.W.1 Sabir Ali in their defence, who deposed that on 26th April, 2005, there was a bomb-blast. He further deposed that at 5-00 p.m. He came out from his but and saw that one person was sitting on railway track, who on seeing him started walking. Witness on suspicion that the said person might had removed the nut-bolt of railway track, as being nearest resident, he was deputed by railway authorities for taking care of railway track, however; when he reached the track, he saw that something was lying on the same, as such, he had given information to the same to S.P. Office. It further deposed that four police officials from S.P. Office came at the railway track and thereafter they had informed the police station, in the meanwhile, a passenger train came there and crossed without sustaining any loss. Thereafter, police authorities reached there, and; the S.P. Had appreciated the effort of witness, as well as, his statement was recorded. This witness stated that the person seen on railway track was tall and fat. He further deposed that none of the accused persons was the same person.
46. ' In cross-examination, he stated that he was not paid money for taking care of the railway track.
47. He further stated that he has no clinic, while he gives medicines to the patients who, come to his house. It was stated that three/four months prior to the incident, he was residing at said place. He also stated that he has no relationship with accused persons. He further stated that he had heard that two persons were arrested in the said case and he has voluntarily appeared before the Court for recording his statement. He denied the suggestion that on the eventful day, he had not seen any person; voluntarily stated that he had seen one person. He denied that he has deposed falsely.
48. ' The learned Judge, Anti-Terrorism Court, Sibi-Nasirabad Division, Sibi at Dera Murad Jamali, on appraisal of evidence, vide judgment dated 6th February, 2006, convicted and sentenced the appellants in the manner, hereinabove mentioned. Being aggrieved of their conviction and sentences, convicts-appellants have preferred the instant appeal.
49. ' Mr. Hadi Shakeel Ahmed, learned counsel has appeared on behalf of convicts-appellants, while Mr. Abdul Raheem Mengal, learned Assistant Advocate-General appeared on behalf of State.
50. ' Learned counsel for convicts-appellants has strenuously contended that the prosecution has failed to prove the case beyond shadow of doubt and the evidence so produced is not confidence-inspiring and is not worthy of credence. It was further contended that Faqir Muhammad (P.W.2) who statedly had identified the accused persons, has resented from his statement, while the disclosure memo. (Exh.P.1/D) dated 17th July, 2005 is not worthy of reliance, as the accused arrested on 4th July, 2005 and police officials were already in knowledge of the police of incident, and; having prepared site plan (Exh.P.1/E). It was further contended that according to section 21(H) of the Anti-Terrorism Act, 1997, there are specified circumstances where the police has got the jurisdiction to record confessional statement of accused. It was stated that the alleged statements were recorded on the last day of remand by the D.P.O. (P.W.4), who was aware of the facts and the Judicial Magistrate was present in the Town and no circumstances were explained as to why the said statements were not recorded by the Judicial Magistrate. Learned counsel has also referred to the judgment reported in PLD 1998 SC 1445, wherein; their Lordships of the Honourable Supreme Court were pleased to hold that the police has got no jurisdiction to record statement of accused in view cf Article 13 of the Constitution of Islamic Republic of Pakistan, 1973. The learned counsel vehemently argued that the confession is a result of coercion and has not been voluntarily recorded by the accused persons.
51. ' On the other hand, learned Assistant Advocate-General has supported the judgment and stated that the prosecution has brought the guilt at home, as such; the convictions and sentences awarded to the appellants are legal and proper.
52. ' We have considered the arguments advanced by parties' learned counsel and perused the record. There are following pieces of evidence and circumstances, which require appreciation:--
(1) Statement of P.W.1, who had addressed Murasla (Exh.P. 1/A) that some unknown persons have planted a bomb in order to cause loss to railway track, as also to cause loss to the train. This witness has not witnessed the accused persons while committing the offence. On the basis of said Murasla F.I.R. No,79 of 2005 (Exh.P.1/B) was registered against unknown accused persons.
(2) Statement of P.W.2, who statedly had seen the accused persons while planting the bomb. The said witness had resented from his statement and was declared as hostile witness. He in the cross- examination had not stated that he had seen any person while planting the bomb and according to him no identification proceedings had taken place having signed on a blank paper;
(3) Statements of Allah Rakhia (P.W.3), Munawar Hussain Shah (P.W.7), Abdul Ghani (P.W.8) and Bakhsh Ali (P.W.9), are the persons who were injured. In actuality, there were five persons, who had sustained injuries on account of said explosion. They were further supported by Dr. Sri Chand (P.
53. W.10) who had produced medical certificates (Exhs.P.10/A to P.10/E);
(4) The statements (Exhs.P.4/B and P.4/C) recorded by P.W.4 Abdul Raheem Jamot D.P.O. On 18th July, 2005, the said witness has further stated that after recording statements, he had sent the accused persons to the Judicial Magistrate for sending them to judicial lock-up;
(5) Disclosure memo. (Exh.P.1/D), allegedly made by the accused persons on 17th July, 2005 and preparation of site plan (Exh.P.1/E) at the instance of accused persons;
(6) Identification parade through memo. (Exh.P.1/C) held in the presence of P.Ws.1, 11 and 12.
54. ' The first piece of evidence is statement of P.W.1, relating to three parts of the case i,e, (i) immediately on receipt of report having reached on the spot and sending Murasla (Exh.P.1/A), whereupon F.I.R. (Exh.P.1/B) was registered; (ii) preparation of disclosure memo. (Exh.P.1/D) and site plans (Exhs.P.1/C and P.1/E) having been tendered by the witness; (iii) identification parade being held in his presence, which will be taken up separately. The question arises, whether the accused persons, who were in the custody of police for about 14 days having witnessed the place of incident, and were within their knowledge of the factum of blast, had disclosed some new facts leading to the commission of offence. Article 40 of the Qanun-e-Shahadat Order, 1984 is reproduced hereinbelow:-- "40. How much of information received from accused may be proved.--- When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved".
55. ' The above provision of law clearly contemplates that a fact distinctly leading to discovery of new fact would be subject-matter of disclosure. As stated above the factum of place of incident was within the knowledge of accused persons, as such, would not amount to discovery of new fact.
56. Moreover, it is stated that the site plan (Exh.P.1/E) prepared also was within the knowledge of police officials, who had visited the site, and thus; the disclosure is of no consequence. The said portion of the disclosure memo. Has already been discarded by the trial Court and the findings in this behalf are proper and in accordance with law.
57. ' So far as, the second piece of evidence i,e, statement of P.W.2 is concerned, he has already been declared hostile, however; the identification made by him has to be examined in the light of statements made by P.Ws.1, 11 and 12. P.W.1 has categorically stated about the identification parade held, whereby; the accused persons were identified by the said witness. Similarly, P.Ws.11 and 12 have also witnessed the identification parade, which was held. The Identification Parade Form (Exh.P.1/C) was tendered by P.W.1. The identification parade was held after thirteen days and no explanation was offered for delay in conducting the same. The Identification Form (Exh.P.1/C) produced by P.W.1 was supplemented by P.Ws.11 and 12. Exh.P.1/C reflects that the D.S.P. Had conducted the identification parade, has proved the same by appearing in the Court, but; he failed to explain as to why delay has caused in conducting identification parade, and thus; without explanation B by the prosecution itself is fatal. The Honourable Supreme Court of Pakistan in the case of State through Advocate-General Sindh v. Farman Hussain and others PLD 1995 SC 1 has held that delay of ten days in conducting identification was not proper and was open to doubt. It is to add that the person (P.W.2) relating to whom, it was stated that he had identified the accused persons, did not support the prosecution and was declared hostile. Relevant observations of the Honourable Supreme Court are reproduced hereinbelow:-- "(16) ... Respondent Ghulam Abbas was arrested on 6-1-1991 and Liaquat on 14-1-1991 and identification test took place on 16-1-1991. Identification was not held in proper manner and number of dummies was not proportionate to number of accused persons made to stand in the test.
58. Identification test of Abbas was held after ten days for which it can be said that it was open to doubt. Evidence of identification test in such circumstances is assailable and not fit to be relied upon."
59. ' The other factor with regard to identification parade is that the details of accused were not mentioned in the F.I.R. Registered at the instance of informant i,e, P.W.2. When P.W.2 had the opportunity to see that three persons are planting the bomb, it was required to be mentioned in the Murasla sent in this behalf. The Murasla and F.I.R. Show that according to initial information it was not mentioned that there were three persons, who had planted something. Record contemplates that statement under section 161, Cr.P.C. Alleged to had been recorded on 26th April, 2005, even in the F.I.R. And Murasla, the description and features of the accused persons were not provided. It has not come on record that the accused persons were known to the said witness or they were identified on glimpse.
60. ' This question of law has been answered by their Lordships in the case of State/Government of Sindh through Advocate-General v. Sobharo 1993 SCM R 585, in the following terms:-- "(11) ... Legal position stated in the other two rulings is correct but would not apply to the facts of the present case in which the eyewitnesses did not give name of the accused to the complainant nor gave description of his features for the reason that he was not known to them from before and was seen by them for the first time. We, therefore, agree with the trial Court that identification test has no value for want of description of respondent in F.I.R."
61. ' For the reasons stated above, we hold that the identification as relied by the trial Court is of no value.
62. ' The third piece of evidence against the accused persons is with regard to injuries sustained by Allah Rakhia (P.W.3), Munawar Hussain Shah (P.W.7), Abdul Ghani (P.W.8) and Bakhsh Ali (P.W.9).
63. The above pieces of evidence have although established through witnesses that they had sustained injuries and Dr. Sri Chand (P.W.10) had issued medical certificates (Exhs.P.10/A to P.10/E).
64. On the basis of said evidence, it is established that in consequence of bomb-blast, they sustained injuries on the spot.
65. ' So far as the most important piece of evidence is confessional statements recorded by District Police Officer (P.W.4) on the last date of remand. Section 21(H) of Anti-Terrorism Act, 1997 has authorized the Superintendent of Police to record the confessional statement. Section 21(H) of the Act, 1997 is reproduced hereinbelow:-- "21(H). Conditional admissibility of confession.--- Notwithstanding anything contained in the Qanun-e-Shahadat, 1984 (President's Order No,10 of 1984) or any other law for the time being in force, where in any Court proceedings held under this Act, the evidence (which includes circumstantial and other evidence) produced raises the presumption that there is a reasonable probability that the accused has committed the offence, any confession made by the accused during investigation without being compelled, before the Police Officer not below the rank of a Superintendent of Police, may be admissible in evidence against him, if the Court so deems fit: ' Provided that the Superintendent of police before recording any such confession, had explained to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and that no Superintendent of Police has recorded such confession unless, upon questioning the person making it the Superintendent of Police had reason to believe that it was made voluntarily, and that when he recorded the confession, he made a memorandum at the foot of such record to the following effect:- "I have explained to (... Name... ), that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
66. (Signed) Superintendent of Police."
67. ' The above provision of law authorizes the District Superintendent of Police to record the statements of accused with regard to any confession made by the accused during investigation without being compelled to record said statement. The above provision of law clearly contemplates that the circumstances, in which, the confession is recorded, is also to be explained.
68. In the case in hand it is an admitted feature of the case that the accused were arrested on 4th July, 2005 and were kept in custody till 18th July, 2005. The District Police Officer was incharge of the area. It is also admitted feature of the case that the Judicial Magistrate was available in the Town, as according to the statement, after recording confessional statements, he had sent the accused persons to Judicial Magistrate for transfer of their custody to judicial lock-up. The District Police Officer had failed to point out special circumstances, which compelled him to record the statements under section 164, Cr.P.C. Instead of sending the accused persons to Judicial Magistrate. It would not be out of place to mention here that the Honourable Supreme Court of Pakistan in the case of Mehram Ali and others v. Federation of Pakistan and others PLD 1998 SC 1445 had declared section 26 of the Anti-Terrorism Act, 1997 (earlier given repugnant to Article 13 of the Constitution of Islamic Republic of Pakistan, (1973). Relevant observations are reproduced hereinbelow:-- "(v) That section 26 of the Act provides that notwithstanding anything contained in Qanun-e- Shahadat Order, 1984 (President's Order 10 of 1984), a confession made by a person accused of any offence punishable under section 7 or section 8 of the Act or an offence covered by sub-paragraph
(a) of paragraph 2, or paragraph 3 of the Schedule to the Act, or robbery or dacoity with murder or rape, before a Police Officer not below the rank of a Deputy Superintendent may be proved against such person. The above provision seems to be violative of Articles 13(b) and 25 of the Constitution.
69. It may be observed that clause (b) of Article 13 of the Constitution confers a fundamental right by providing inter alia that no person shall, when accused of any offence, be compelled to be a witness against himself. Indeed a judicial confession is recorded by a Magistrate which is admissible as a piece of evidence, but keeping in view the state of affairs obtaining in the police force, we cannot equate a Police Officer with a Magistrate. Additionally there are very strict requirements which a Magistrate is required to comply before recording a judicial confession of an accused person. These requirements do not find place in the impugned section of the Act. It is true that it will be for the Special Court concerned or for the Appellate Tribunal to accept or not to accept a confession recorded by a Police Officer specified in the above section, but the fact remains that such a confession is not in consonance with the law and the Constitution."
70. ' The important factor involved is voluntariness of said statements, it has already been pointed out that the said statements were recorded after lapse of fourteen days. The admissibility of said statements under section 21(H) in the Anti-Terrorism Act, 1997 (Ordinance No,XXXIX of 2001), is open to criticism. When a police official produces the accused before another police official, who is directly supervising the said police station, voluntariness of the said statements is seriously to be doubted. Thus, said statements having been recorded after fourteen days cannot be relied upon. It is also not known that why normal procedure of Judicial Magistrate was not adopted and the same had to be recorded by the District Police Officer, who thereafter, forwarded the accused persons to Judicial Magistrate for sending them to judicial lock-up. The credibility of said statements were not above board and cannot be made basis for conviction. We are also supported by a judgment of Peshawar High Court delivered in the case of Aftab Ahmed v. The State 2004 M LD 1337 (Pehsawar). Relevant observations are reproduced hereinbelow:-- "(10) How an accused when produced by one Police Officer before another Police Officer can feel free and think that now he is in safe hands and that he is no more accessable to those who are Incharge of the investigation. It is not mere the question of admissibility or otherwise of a confessional statement, it is, in fact the voluntariness or otherwise of a confessional statement before a person who can never be thought to be independent, impartial, non-partisan and apart from those who are entrusted with the job of investigation. How an accused produced before a Superintendent of Police in a bewildered state or even otherwise can understand that a Superintendent of Police is different in his attitude and outlook from other Police Officers. How a sharp line of cleavage can be drawn between the two. Theoretically or on papers this distinction may have some existence but for an accused in handcuffs, they are chips of the same block.
(11) Yet another question crops up as to why the normal and recognized course of producing the appellant before a Judicial Magistrate was not adopted. What were the exigencies necessitating the production of the appellant before an S.P. For recording confessional statement and what were the circumstances which called for a deviation from the recognized course. If a confessional statement emerged from the will and volition of an accused and was made voluntarily, why was he not produced before a Magistrate and what was that extraordinary and unusual to warrant his bypass particularly when its recording by him could rather be above board and much more transparent. Since the decision about its admissibility in view of section 21-H of the Act mentioned above has been left on the judicial discretion of the Court, the Court before relying upon it must see and satisfy itself whether the questions enumerated above have been satisfactorily answered. If the answers are in the affirmative, alright it can be relied upon. But if in the negative as in this case, it will neither be credible nor even relevant. Needless to say that being admissible does not necessarily mean being credile."
71. ' Following above judgment, we hold that statements of accused persons under section 164, Cr.P.C.
72. Are not worth credence.
73. ' The disclosure memo. And identification parade have already been dispelled and there is no other circumstantial or direct evidence, implicating the convicts-appellants in the commission of offence. In the circumstances of the case, appeal is allowed and the impugned order of conviction is set aside and the appellants are acquitted of the charge. They be set at liberty, if not required in any other case.