' RAHMAT HUSSAIN JAFFERI, J.---This judgment will dispose of Special Anti-Terrorism Appeal No. 39 of 2005 and Confirmation Case No. 5 of 2005 as they arise out of common judgment.
2. The present appeal is directed against the judgmqnt, dated 4-6-2005 passed by the learned Judge Anti-Terrorism Court No.V, Karachi by which the learned Judge convicted the appellant for offence punishable under section 7(a) of Anti-Terrorism Act, 1997 read with section 302, P.P.C. sections 324 and 114 read with section 34, P.P.C. And section 3 of Explosive Substances Act, 1908 read with section 427, P.P.C. And sentenced him to various terms of imprisonments including death.
3. Brief facts giving rise to the appeal are that on 31-5-2004 P.W.1. Complainant Syed Zahoor Abbas was present in his house situated in Block 14, F.B. Area, Karachi, who was President of Masjid/Imam Bargah Ali Raza situated on M.A. Jinnah Road. At about 8-00 p.m. He received a telephone call that a bomb blast had occurred in the mosque, therefore, he immediately rushed to the place of incident and reached there at about 8-30 p.m. He saw the area in complete dark. There was hue and cry. He went inside the Imam Bargah where he found dead bodies and injured persons. Some of them were already shifted to hospital. He helped in shifting the remaining dead bodies and injured persons. In the incident 21 persons who were offering prayers in the Imam Bargah died and about 40 persons received serious injuries. The complainant went to the hospital. The police also reached there. The complainant lodged the report at 11-45 p.m.
4. The police started the investigation. They recorded the statements of P.W.2 Syed Mujahid Hussain and P.W.3 Iqbal Hussain. They claimed to have seen two persons hugging each other. Out of them one went inside the mosque holding a briefcase and then a blast occurred. The police arrested the appellant who was produced before a Magistrate where P. Ws. 2 and 3 identified him to be the person who hugged the person who went inside the mosque. The police received application from one Mst. Gul Bano and Gul Jameel, husband and wife that their son was missing. The pieces of body allegedly secured from the mosque and the blood of the couple were sent for DNA Test. The test was positive, therefore, the police claimed that the son of the said couple was suicide bomber.
The, police, after usual investigation, challaned the appellant in the Court Where he was tried and convicted as mentioned above under the impugned judgment.
5. The case of the appellant as mentioned in his statement recorded under section 342, Cr.P.C. Is as under:-- "Sir, I am innocent and have been falsely involved in this case, I do not belong to any proscribed organization, nor I know alleged suicider, DSP Umer Khitab arrested me on 11-6-2004 and brought me at CIA, Saddar Town, where they forced me to confess. I have not committed any offence as such no question arise for such statement. Sir, Police has falsely challaned me in this case to show their efficiency as they ,failed to arrest real culprit. My wife and three children are in the custody of agencies, police, also threatened me for any complain whatsoever, otherwise,they will kill my wife and children. I am innocent and pray for justice."
6. We have heard Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully.
7. The learned Advocate for the appellant has stated that the prosecution case rests upon two pieces of evidence viz. (1) ocular testimony of P.Ws.2 and 3; and (2) identification test. He has further argued that both the witnesses are police, set up witnesses; that their B evidence is not corroborated by P.W.1 or any private person; that the prosecution has not led any evidence connecting the alleged suicide bomber with the appellant, therefore, through that piece of evidence the appellant has not been connected.
8. Conversely, the learned A.A.-G. Has stated that P.Ws. 2 and 3 had seen the appellant hugging a person who was holding a briefcase just before the incident; that the said person went inside the mosque and then the blast took place, therefore, appellant is involved in the case. He has admitted that the prosecution could not connect the alleged suicide bomber with the appellant as no evidence has been led in the case to show any relationship or meeting of the alleged suicide bomber with the appellant but he has stated that through the evidence of P.Ws. 2 and 3 the involvement of the appellant has been established. He has supported the impugned judgment.
9. We have given due consideration to the arguments, gone through the evidence with the assistance of the learned Advocate for the appellant and found that the entire case hinges upon the evidence of P.Ws. 2 and 3. The evidence of P.W.2 reveals that on 31-5-2004 at about 7-30 p.m he went to Harmain Travel Agency, which was sending people to perform Hajj, Umrah and Ziarat but Muhammad Ali, owner of the agency, was not available, therefore, he came out from the said office. He went to a Pan Cigarette Cabin which was at the corner of the mosque to purchase cigarette. After purchasing the cigarette he lighted it and saw two persons at a distance of about 4 or 5 paces away from him hugging each other. Out of them one person was holding a small briefcase wearing eyesight glasses and other person was with moustaches without beard. The person who was without beard said to his companion who was holding the briefcase "Jao Jannat tumain mubarak ho our jao safoon main jaldi pohncho". Thereafter the person holding the briefcase went towards the Imam Bargah Ali Raza and entered in it whereas the other person went to opposite direction. After hearing the conversation he could not understand its implication.
10. It is pointed out that the place where the alleged hugging took place was near the police check- post. At the, relevant time two police constables were available at the said place as per statement of P. W,10 A.S.-I. Ghulam Rasool who was assigned duties at the Imam Bargah and was sitting in a police mobile van. He also gave the names of two police officers who were present at the said place. They were Saleem Zia and Tanveer. He further added that they were armed with weapons.
The injured witnesses also stated that two police constables were available at the check-post. The distance between the check-post and the persons who were allegedly present and hugging each other was 8 ft. If the police constables armed with weapons were present at such close distance then it does not appeal to the common sense that the criminals would hug each other and made conversation so loudly that a person standing at a distance of 7 or 8 ft. Could hear them.
' If the P.W.2 had heard the talk of the appellant then the said two police constables could have also heard the same and would have been alarmed but the prosecution did not examine any of those police constables to support and corroborate the statement of P.W.2, which has adversely affected the prosecution story.
11. The evidence of P.W.2 further shows that he went towards building which was near to Saachi Tower. Suddenly a bomb exploded in the Imam Bargah and the area went into dark. There was hue and cry. After some time. P.W.1 complainant Zahoor Abbas came. Many persons collected around him. He informed the above facts to him but he did not pay any heed to it and asked him to see him after some time or come on the next day. Thereafter he was not feeling well, therefore, he went to his house. His statement further reveals that on the next date viz. 1-6-2004 he went to his duty from where he made a call to Harmain Travel Agency and inquired for Muhammad Ali. He also inquired as to whether P.W. Zahoor Abbas called him or he was available there or not. The person informed him that P.W.1 Zahbor Abbas as well as police were present. After hearing the said fact he went to Harmain Travel Agency and reached there at about 11-00 a.m. He saw P.W. Zahoor Abbas and police present there. He narrated the facts to P.W.1 which he aw on the last night. P.W.Zahoor Abbas directed him to give the details to the police officer who was also sitting with him and then he narrated the said facts to the police who recorded his statement. His evidence further reveals that on 22-6-2004 he identified the appellant in an identification test held before a Magistrate.
12. From his evidence it simply shows that he heard the conversation of two persons who were standing at a distance of about 4 or 5 paces viz. 6 or 7 feet away from him and one person entered the Imam Bargah and the other person went away. He heard the said conversation while both the persons were hugging each other. If the person had come with alleged purpose of causing bomb blast in the mosque then the secret verbal communication would not be so loud so as to be heard by other persons to attract their attention. Even otherwise if two persons are hugging each other and something, which is an offence or illegal act is to be said, then said fact is to be communicated in a very low tone or in whisper in the ear of other person so that nobody could hear him. It appears that the verbal communication was so loud that it was heard by a person who was standing at a distance of about 7 or 8 feet away from the said person. This aspect of the case has adversely affected the prosecution about the said fact.
13. Even if we accept the statement of this witness then his statement simply shows that he saw a person entering into Imam Bargah. There is no evidence led by the prosecution to show that the bomb blast was caused by the said person. The learned A.A.-G. Was asked to point out such evidence but he frankly conceded that the prosecution could not lead such evidence or such evidence could have been led as nobody had seen the actual incident of blast occurring in the Imam Bargah because at that time the persons were offering prayers and nobody was paying attention to the persons standing close to them. In the absence of such evidence it cannot be held that the person who entered into the mosque was the person who was responsible for causing the bomb blast. The cases of heinous crimes particularly involving capital punishment cannot be decided on mere presumptions or inferences.
14. The prosecution has produced a DNA Test of some pieces of human body which tallied with the blood of Mst. Gul Bano and her husband Gul Jameel. This also simply shows that the pieces of human body belong to the son of the said persons. It is also surprising to note that the prosecution did not examine Mst. Gul Bano or Gul Jameel to prove that they actually filed application before police or gave blood and the blood which was sent to expert belong to them. The prosecution also could not connect the jars in which pieces of human body were present to have been recovered from Imam Bargah as according to P.W.30 Dr. Rohina Hassan, he preserved some pieces of body in two jars. The said jars were not sealed which were handed over to police. There is no evidence that the said two jars were the same jars which were sent by police to the expert for examination and report. The learned A.A.-G was again asked to connect the jars sent by the S.H.O. To expert with the jars prepared by medical officer but he could not link both the jars through any piece of evidence.
He frankly conceded that the link in between both the jars is missing as the prosecution did not examine the witnesses to connect both the jars. In the absence of such connecting evidence it cannot be held positively that the pieces of human body lying in the jar were actually secured from the Imam Bargah or that the blood sent to expert belongs to Mst. Gul Bano and Gul.
15. Even otherwise if we infer that the pieces were secured from the Imam Bargah but there is no evidence to connect the appellant with the son of Mst. Gul Bano. The prosecution did not lead evidence showing any connection or meeting of the appellant with the son of Mst. Gul Bano but the prosecution has failed to lead such evidence.
16. The entire case hinges upon the fact that if the prosecution proves that the person who allegedly hugged the appellant had caused the actual bomb blast then the prosecution would succeed in connecting the appellant with the said person but if they fail to prove such fact then merely hugging of two persons before the incident, outside the Imam Bargah and at some distance of about 20 or 25 feet would not prove the involvement of the appellant with the commission of this crime. To examine such question, the learned A.A.-G was asked to pinpoint such evidence which he replied in negative.
' The statement of P.W.3 simply shows that he saw two persons hugging with each other at a distance of about 25 feet away from him and one of them, holding briefcase went inside the Imam Bargah and the other went to other side. Through this evidence and for the reasons discussed above the involvement of the appellant cannot be established.
18. The statements of both the witnesses that just after the incident they informed the incident to P.W. Zahoor Abbas who directed them to come on the next day have not been proved..The witnesses did not say. Such fact in their police statements which fact has been proved through the Investigating Officer. The P.W.1 Zahoor Abbas also did not support them as he stated that he did not state in police statement that persons informed him about the incident and he directed them to come on the next day. Furthermore, both the witnesses deposed that their statements were recorded on 1-6-2004 by. The police, P.W.2 further deposed that when he contacted Harmain Travel Agency, on his inquiry, he was informed that P.W. Zahoor Abbas and police were there, therefore, he reached there at 11-00 a.m. First he narrated the incident to P.W.1 Zahoor Abbas who directed him to tell such story to police, therefore, he informed the said facts to the police who recorded his statement. This statement of the witness has neither been supported nor corroborated by any of the evidence available on the record. On the contrary, P.W.1 did not state the fact that on the next day P.W.2 contacted him in the Harmain Travel Agency or informed him the facts and then he directed him to inform the incident to police but P.W.1 specifically stated that on the next day he went to the place of incident at Maghrib Prayer's time. Thus the question of meeting of P.W.2 with the P.W.1 in Harmain Travel Agency at 11-00 a.m. Does not arise.
19. The P.W.3 stated that on 1-6-2004 he reached Imam Bargah Ali Raza at about 10-30 or 11-00 a.m.
Where P.W. Zahoor Abbas, police and other persons were present and his statement was recorded.
His statement is not supported by the P.W.1 as well as by P.W.40 Inspector Najabat Hussain who recorded the statement of the witness. According to P.W.40, on the next day he went to the place of incident at about 10-00 or 11-00 a.m. Where the complainant Zahoor Abbas informed him that two eye-witnesses were present in Harmain Travel Agency- near the Imam Bargah, as such, he along with complainant Zahoor Abbas went in the agency where eye-witnesses P.W.2 Mujahid and P.W.3 Iqbal were present and he recorded their statements. His statement is not supported by the P.W.1 complainant, P.W.2 Mujahid and P.W.3 Iqbal. Thus, the question of recording the statements of these witnesses by P.W.40 has not been established in the manner they alleged as all the three witnesses gave contradictory statements to each other. In these circumstances, the learned Advocate for the appellant has alleged that the witnesses were-set up witnesses to involve the appellant with the commission of the crime.
20. As regards the identification test it is a corroborative piece of evidence If the ocular testimony is discarded then merely on identification test no conviction can be awarded. In the present case, at the most, identification test in respect of appellant would be to the effect that he was simply seen hugging a person at the place of incident. This, by itself, is no offence, as such, the identification test carries no weight in the peculiar circumstances of the present case.
21. In all, the prosecution examined 40 witnesses in the case. Most of them are injured witnesses and medical officers. Injured witnesses gave the details of the incident by, stating that during prayers a bomb blast occurred and they received injuries. The medical officers gave the details of the injuries found on the bodies of deceased and injured witnesses. The police officers gave details of their investigation. Through their evidence the involvement of the appellant has not been established.
22. After considering the material available on the record we are of the considered view that the prosecution has failed to prove the case against the appellant, :therefore, the conviction and sentence awarded to the appellant under the impugned judgment are set aside. The appellant is acquitted and set at liberty. He is in custody. He should be released forthwith if not required in any other custody case. The appeal is allowed and confirmation case is dismissed.