' ALI SAIN DINO METLO, J.---- Appellant Sabir Ali Waseem has appealed against his conviction and sentence recorded by the Anti-Terrorism Court No,II, Karachi Division, Karachi. The charge against him was that on 23-11-2001 at 9-55 p.m. He and his companion Asif Ramzi alias Imran had fired a rocket and thereby caused damage to the building of Government Commerce and Economics College, Dr. Ziauddin Ahmed Road, Karachi, endangered human life and created a sense of fear and insecurity among people. The learned Court, by its judgment, dated 7-6-2003, while acquitting Asif Ramzi in absentia, convicted the appellant and sentenced him as under:--
(a) to undergo rigorous imprisonment for 10 years under section 4 of the Explosive Substances Act, 1908;
(b) to undergo rigorous imprisonment for 10 years and to pay fine of Rs,50,000 or in default thereof to suffer rigorous imprisonment for six months more, under section 7(b) of the Anti-Terrorism Act, 1997;
(c) to undergo rigorous imprisonment for 10 years and to pay fine of Rs,50,000 or in default to suffer rigorous imprisonment for six months more, under section 7(d) of the Anti-Terrorism Act, 1997, read with section 427 of the Pakistan Penal Code, 1860 and
(d) to confiscate all his properties to the Government under section 5-A of the Explosive Substances Act, 1908.
All the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to the appellant. Out of the fine, if paid, an amount of Rs,50,000 was directed to be given to the principal of the College as compensation under section 544-A, Cr.P.C.
2. Briefly, the facts are that on 23-11-2001 at about 9-55 p.m. Complainant Rehan Khan, watchman of Government Commerce and Economics College, Karachi, heard a big explosion having taken place in a street adjacent to the college. On coming out from the college, he saw a cloud of dust and smoke arising from the street. Many people were attracted by the explosion. A mobile of Police Station Civil Lines also reached their immediately. A push-cart, an iron box, a bag, and some waste papers were found there at the place of explosion in the street. A fresh hole in the compound wall of the college was also seen. On verification, a door of Superintendent's room, door of a bath room, window, floor, ceiling fan and desks of a class room were found damaged. The fired rocket was also found lying under a desk. Some unknown terrorists, with the object of creating fear and panic, had fired the rocket and damaged the college building. Such report of the watchman was registered on the same day at 11-30 p.m. At Police Station Civil Lines.
3. On inspecting the site, police took all the above mentioned articles into possession and recorded statements of the witnesses. The appellant, who was already in custody of police in connection with several other cases, was arrested in this case on 19-4-2002 and on the very same day place of incident was revisited by police on his pointation and some arms and ammunition were recovered from his house for which a separate case bearing F.I.R. No,156 of 2002 was registered against him at Police Station Jamshed Quarters. On 26-4-2002, he was identified by prosecution witnesses Muhammad Ashraf and Muhammad Afzal in an identification parade held before a Magistrate and on the same day he is shown to have made confession before the same Magistrate. On 14-5-2002, charge-sheet was filed in the Anti-Terrorism Court, showing the appellant in custody and Asif Ramzi alias Imran as absconder. The latter was tried in absentia.
4. At trial, the appellant pleaded 'not guilty' and the prosecution examined 10 witnesses, namely, complainant Rehan Khan (P.W.1), S.I.P. Muhammad Yaseen (P.W.2), Inspector Syed Agha Hussain Shah (P.W.3), Professor Ghulam Ali (P.W.4), Muhammad Ashraf (P.W.5), Muhammad Afzal (P.W.6), Dr. Mehboob Ali (P.W.7), Ms. Erum Jehangir (P.W.8), S.I.P. Muhammad Hanif (P.W.9), and Inspector Riazul Haq (P.W.10). In his examination under section 342 of the Code of Criminal Procedure, 1898, the appellant denied the allegation and contended that neither he had pointed out the place of incident, nor any identification parade was held and nor he had made any confession. No question regarding recovery of arms and ammunition was put to him and rightly so because they had nothing to do with the present case. He termed all the evidence produced by the prosecution as false and fabricated. According to him, he was arrested on 30-3-2002 and was illegally detained by police. He produced copies of telegrams made by his mother to various authorities as Exhs.D.1 to D.4, copies of orders passed in habeas corpus petition bearing Criminal Miscellaneous Application No,107 of 2002 filed by his mother as Exh.D.5 and copies of two newspaper cuttings as Exhs.D.6 and D.7, deposition of Ms. Erum Jehangir recorded in another case against him as Exh.D.8, copy of his remand report in F.I.R. No,65 of 2002 of Police Station Nabi Bakhsh as Exh.D.9, and copy of his confession as Exh.D.l0. The trial Court acquitted absconding accused Asif Ramzi alias Imran and convicted the appellant as above.
5. The prosecution as well as the trial Court have relied upon following pieces of evidence:--
(a) appellant's pointing out the place of incident;
(b) recovery of arms and ammunition from appellant's house on his pointation;
(c) ocular evidence;
(d) identification parade;
(e) medical evidence; and
(f) confession.
6. The evidence of appellant's pointing out the place of incident to police is inadmissible inasmuch as no fact was discovered in consequence of the information received from him. For the purpose of making an information received from an accused in police custody admissible under Article 40 of Qanun-e-Shahadat, 1984, discovery of a relevant fact is a sine qua non. The place of incident allegedly pointed out by the appellant was known to everybody. Police had reached there and seen it immediately after the incident. It was not a secret made known by the appellant.
7. The alleged recovery of arms and ammunition from the possession of appellant is also not relevant as the same are not shown to have been used in the commission of the present crime.
The Investigating Officer, namely, Inspector Riazul Haq (P.W.10), who had recovered them, has himself stated that they had nothing to do with the present case. Perhaps, it was for this reason that no question in that regard was put to the appellant in his examination under section 342, Cr. P.
C .
8. As regards the ocular evidence of Muhammad Ashraf (P.W.5) and Muhammad Afzal, (P.W.6), it does not inspire confidence for many I reasons. They claim to have seen the appellant and one other person at the place of incident just before the incident and their fleeing from there on a motorcycle just after the incident. According to them, they happened to pass from there at that time and were at the distance of only about 60 paces when the explosion took place. They claim to have rushed to the place of incident and were among the first persons to reach there. According to them, police had also reached there immediately and they had narrated the entire incident to police then and there. But strangely enough their names have not been mentioned in the F.I.R.
Though the same was registered after making preliminary enquiry at the spot. Complainant Rehan Khan (P.W.1) did not state that these witnesses had come to the place of incident or that they had narrated the incident to police. Had they been there, their names would have been mentioned in the F.I.R. It seems that they were subsequently set up by police. Their D identity was also not established by any document. They did not produce their National Identity Cards or any other document regarding their identity either before the Investigating Officer or before the Magistrate or even before the trial Court. At the time of recording his statement under section 164, Cr.P.C. Witness Muhammad Afzal gave his age as 60 years while at the time of giving evidence before the trial Court he gave his age as 45 years. Indeed, identity of these witnesses remained a mystery.
9. Admittedly the appellant and his associate were not known to them but in spite of that they did not give their features to police nor police felt it necessary to know the same. This conduct on the part of the witnesses and police casts doubt upon their veracity and fairness. The most probable reason for not giving features by the witnesses seems to be that they had not seen them clearly and the most probable reason for not enquiring about their features by the Investigating Officer seems to be his desire to fit in anybody be wanted. In the sketch of the place of incident source of light has also not been shown and this. Was confirmed by Investigating Officer in his evidence. The claim of the witnesses that on the arrival of police they had narrated the incident to police and thus, volunteered to act as witnesses is falsified by the Investigating Officer, S.-I. Muhammad Hanif (P.W.9). According to him, on his arrival at the place of incident so many persons had already gathered there but none was prepared even to act as a Mashir of the place of incident. At the time of identifying the appellant in the identification parades held before the Magistrate, they did not disclose the context in which they identified him nor the Magistrate felt it necessary to enquire from them in what context they were identifying him. Such casual conduct on the part of the witnesses and the Magistrate reflects upon their veracity and duty consciousness. If the witnesses were not able to give features of the appellant and his associate immediately after the incident, it would be hard to believe that they were able to identify him after such a long time i,e, at the time of identification parade or giving evidence in Court.
10. As regards the evidence of identification parade, the same is worthless inasmuch as neither the witnesses at the time of identifying the appellant in the so-called identification parade disclosed in what context they were identifying him nor the Magistrate took trouble of making such enquiry. The latter admitted that she had also not ascertained identity of the witnesses through their National Identity Cards or any other document.
11. Medical evidence is also worthless. None of the witnesses has stated that the appellant had suffered burns at the time of firing the rocket. The final certificate by Dr. Mehboob Ali (Exh.P.18) that the appellant had inflammatory pigmentation on both thighs and lower abdomen, is based upon the opinion of dermatologist who was not examined by the prosecution. In his preliminary certificate (Exh.P.16) Dr. Mehboob Ali had not mentioned even the presence of such pigmentation on the person of the appellant. The age of the inflammatory pigmentation, given by the doctor in his evidence as six months, was neither mentioned in the report of the dermatologist (Exh.P.17) nor in the final certificate (Exh.P.18) issued on the basis of the report. Thus, the opinion of the doctor, not based upon any reason or expertise, cannot be given any weight. It appears that he made deliberate improvements in his evidence only to oblige the prosecution.
12. The confession of the accused that he had fired rocket to target Americans staying in hotel Sheraton does not appear true or voluntary. In between the place of incident and hotel Sheraton there was a big multi-storyed under-construction building of Al-Hayat Regency Hotel and complainant Rehan Khan has clearly stated that Hotel Sheraton was not visible from the place of incident due to the presence of the huge building of Al-Hayat Regency Hotel in between the two.
The sketch of the place of incident (Exh.P.28) produced by the Investigating Officer Muhammad Hanif (P.W.9) also confirmed complainant's statement.
13.The contention of the appellant that he was arrested on 30-3-2002 is supported by sufficient documentary evidence i,e, telegrams and habeas corpus petition made by his mother and the newspaper cuttings. (Exhs.D.1 to D.7). However, the police claimed that he was arrested on 12-4- 2002 while going armed with a T.T. Pistol, for which a F.I.R. Bearing No,65 of 2002 was registered against him on the same day at Police Station Nabi Bakhshl Thus, the confession of the appellant was recorded after 27 days of his claimed actual arrest and 14 days of his official arrest. It is also worth to note that while making written requests for holding identification parade and recording statements of the witnesses under section 164, Cr.P.C., no written request was made to the Magistrate for recording confession of the appellant. This shows that up to that time he was not willing to make confession. It is not understandable as to what compelled him to make confession at the end of his remand period. While denying fabrication of confession,' the Magistrate stated that she could not say with certainty if police had no access to the accused while he was made to sit outside her chamber during the period of reflection and that she could not say if the appellant had made confession voluntarily. When the Magistrate herself was not satisfied about the voluntary nature of confession, the same cannot be admitted in evidence, not to talk of relying upon it. Admissibility of a confession depends upon its voluntary nature. According to section 164(3), Cr.P.C., no Magistrate shall record confession unless he has reason to believe that it was made voluntarily. Indeed, the Magistrate, who was not satisfied about the voluntary nature of appellant's confession, should not have recorded it.
14. In view of the above, we, on being satisfied that the prosecution had miserably failed to prove its case against the appellant and the trial Court had greatly erred in convicting him, had set aside his conviction and sentence,- allowed the appeal and acquitted him by a short order passed and announced on 13-4-2006 and these are the reasons for that. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.