G. M. SHAH, J.-The appellant Mohammad Yaseen, who was a cleaner in P. I. A., was tried for offences under sections 3, 4 and 5 read with section 6 of the Explosive Substances Act, 1908, alongwith two others, namely Mohammad Yousaf mechanic, serving in P. I. A. And Israr Ali a photographer by the Special Court constituted under the Suppression of Terrorists Activities (Special Courts) Act, 1975. By the judgment, dated May 20th, 1975, Mohammad Yousaf and Israr Ali were acquitted; whereas the appellant, was convicted under of sections 3 and 4 (b) of the Explosives Act, 1908, for being in possession of explosive substance and causing the explosion and was accordingly sentenced on each charge to undergo R. I. For seven years and to pay fine of Rs.
1,000 or in default to suffer further R. I. For one year on each charge. The substantive sentences of imprisonment in respect of both the charges, were directed to run concurrently. The appellant has filed the appeal against the said judgment of conviction.
2. The prosecution case is, that on 24February, 1975, at about 11-30 a.m., an explosion took place in the quarter situated on plot No. S-3/144, Saudabad, Karachi, occupied by the appellant and his family members consisting of his were, Mst. Shamim Bano, his son aged about three years and another daughter. One Mr. Abdul Baqi Baloch, also stayed with them in the same house. The explosion was heard by P. W. 1 Anisur Rehman's hotelkeeper, while he was sitting in this hotel. The house of the appellant is in front of the hotel, at a distance of only 100-150 paces away. Only a road in-between separates the house from the hotel. At the time of explosion, the appellant his two children and his sister-in-law, were present in the house whereas Mst. Shamim Bano, who was then working as a typist in an office in Ghafoor Chambers, one Haji Abdullah Haroon Road, had left for her office at about 9 a.m. There are three separate quarters on the ground-floor on the same plot.th One room only, is on the first floor. All the three quarters, on the ground floor, are occupied individually, by appellant, P. W. Mohammad Wasi and Rafi; whereas the room on the first floor is occupied by Mohammad Iqbal, whose sister owns the quarters. He is also her attorney.
3. On hearing the explosion, Anisur Rehman's P. W. 1 saw smoke coming out of the house. He left his hotel and went to the quarter of Mohammad Yaseen. He found 40-50 persons had already collected and amongst them were P. Ws. Buban Mirza, owner of a Restaurant in the locality, Mohammad Iqbal, Mohammad Wasi and his son Javaid. The appellant was standing outside his house at the door, with his son Imran, aged about three years in his lap. The left hand of the appellant was bleeding. His fingers appeared severed from his hand. His son Imran had also injuries on his face and was unconscious. On inquiry by Anisur Rehman's, the appellant replied that a bomb bad exploded in his house. He appeared confused. He further stated that some other bombs were lying in his house and ,they should be taken and thrown in the gutter, situated on the back of his house. When witnesses Buban Mirza and Mohammad Wasi, the next-door neighbour, finding the appellant and his son injured, asked him as to what had happened. The appellant told them that he had received injuries from the bursting of a bulb, which had exploded. He did not reply when he was asked that smoke was coming out from his house and there was some smell of gun-powder.
4. Mohammad Wasi sent for the mother-in-law of the appellant. Through a boy of the locality. He asked his son Javaid to stop a taxi, for taking the appellant and his son Imran to the Jinnah Hospital. Before the taxi could be brought, the mother-in-law of the appellant, reached there, as she resided at a distance of only a five minutes walk from the house of the appellant. In the meantime, Javaid brought the taxi. The appellant told his mother-in-law, not to go anywhere. He asked her to clean the house and to remove the bag (tokri) lying in the house and throw it in the gutter. The appellant, his injured son Imran and his mother-in-law were sent in the taxi with P. Ws.
Wasi and his son Javaid to the Jinnah Hospital. On the way, the appellant requested Mohammad Wasi to take him to the P. I. A. Hospital. Since he was an employee of P. I. A. He preferred to go there, but his mother-in-law insisted that he should be taken to the Jinuah Hospital. Accordingly Mohammad Wasi took him there. When they reached the Gate of the Hospital, the appellant, as well as, his mother-in-law requested Mohammad Wasi to go to Ghafoor Chambers, where Mst.
Shamim Bano, were of the appellant, was working as a typist. Mohammad Wasi went there and informed Mst. Shamim Bano of the facts of the incident, whereas P. W. Javaid took the injured appellant and his son Imran, in--side the hospital, for treatment. On the information received from Mohammad Wasi, Mst. Shamim Bano reached Jinnah Hospital and met the appellant and her son Imran, where her mother was also present.
5. In the meantime, Anisur Rehman's went to Darul Aman, at a distance of about 100 paces away, from the quarter of the appellant, and put in a telephone call to Malir Police Station, reporting about the explosion. S. H. O. Mohammad Warial of P. S. Malir received the call and informed the D. S. P. Fazlur Rehman's, whose office was also situated in the same premises. After making necessary entry in the station-diary, D. S. p. Fazlur Rahman, accompanied by the S. H. O. Of Malir Police Station P. W. Parial and the police party, reached the quarter of the appellant. They found the front door of the house, facing the hotel of Anisur Rehman's, locked. A constable was made to scale over the wall, on the back of the house, who unbolted and opened the door from inside. When the police party entered the quarter of the appellant, some splinters from consumed explosive, were found lying in the courtyard at back portion of the house of the appellant. There was damage noticed on the wall of the bathroom, which was built in the courtyard. Some cracks in the wall were visible to the naked eye and the plaster had also fallen on the ground. Marks of bomb blast were also noticeable on the outer wall of the courtyard. Some splinters and blood was found there. As a result of inspection of the quarter of the appellant, the police considered it necessary to refer the matter to the Bomb Disposal Platoon Commander, Fateh Mohammad, and requested him to reach the place of occurrence, in order to examine the place and the bombs, that were lying inside the quarter and also give opinion, in respect of the splinters and other articles of the explosives, found at the vardat. Since Fateh Mohammad was indisposed, his assistant, Rasheed Umar Khan (p. W. 11), reached the quarter of the appellant, by about 2 in the after--noon, on the same day (24th February, 1975).
6. When the police was examining the quarter it was found that a 'tokri' (bag) containing seven (7) bombs was lying at the intercommunication door of the two rooms of the quarter. Four of the bombs had a shape, like an egg, and three were of cylinderical shape. The egg-shaped bombs were of the size of a palm of a human hand, having the thickness of 3/4" ; whereas, the cylindrical bombs were about 4 to 5 inches long and 1" in diameter, with a thread attached to them, which appeared to be a fuse. A khaki paper bag containing pieces of rubber, was also found lying there.
On further examination of the quarter, marks of gun-powder explosion were found on the side wall of the latrine. Tin pieces numbering about 4-5 were lying in the courtyard. Blood was also found lying inside the house. Human fingers were stuck on the wall and a few pieces of exploded bomb were lying there. Kitchen walls had also explosion marks on them.
7. In the meantime, Mst. Shamim Bano, who was informed about the occurrence, had reached the hospital, from where she reached her quarter. She found the police present, inspecting her quarter.
Police joined her in the investigation. The Mashirnama of the inspection of her quarter was prepared, in her presence, which was signed by her, as well as, the Mashirs. The Police had also seized the plastic bag with all its contents. Splinters, of an exploded bomb, at the wall of the bath room, pieces of human flesh and the blood, as well as, the bag containing the four egg-like bombs and the three dynamite shape bombs of cylindrical shape were secured and seized by the police.
Samples of blood were scraped from the ground and were put in a bottle alongwith human fingers, which were secured from the wall.
8. When the room was inspected and the bombs were seen by Rasheed Umar Khan (P. W. 11), he himself had noticed the marks of bomb blast on the outer well of the bath room. He had also found some iron splinters and blood on the walls, as well as, on the floor. He also found a plastic bag lying inside the bed-room which contained four, country-made bombs of equal size, having the shape of an electric bulb weighing about 1 I b. Inside the same bag, three steel dynamite tubes of 6" length and one inch thick, were lying there. He suspected that the bombs and the dynamite tubes contained high explosives. He therefore recommended conducting chemical analysis of the bombs.
9. During the investigation, P. W. Mohammad Siddiq Qureshi wag contacted by the police on 1st March, 1975. In presence of the Magistrate, Mr. Nek Mohammad Bhutto, he led the police, to a shop called "Standard Photo Studio" on Frere Road, for producing some cartridges and other incriminating articles. The shop was found locked. A lock repairer was called to prepare a key to open the lock. In the meantime S. I. P. Shamsuddin took out a bunch of keys from his pocket. One of the keys fitted the lock, which was opened. The key could not apply to the second lock, which was broken open. A search of the shop resulted in the recovery of some cartridges, two packets of some chemicals and one packet containing some orange coloured chemical, abut 15 knuckle dusters and an Identity card, bearing the name of Israr Ali. All the articles were secured in presence of the Magistrate and the Mashirs.
10. On 3rd March, 1975 a report (Exh. 13/A) from Rasheed Umar (P. W. 11) to the Civil Defence Organization was received. He recom--mended for a further test of explosives and their chemical analysis.
11. On 7th March, 1975 appellant Mohammed Yaseen was produced for his judicial confession (Exh.
9/B) before a Magistrate. The confession reads as under;- "I aim working in P. I. A. There was one Mohammad Yousif who belongs to Jamat-e-Islami. He was the active member of P.
1. A, Employees Union. Mohammad Yousif used to visit my house: Mohammad Yousif was canvassing in election. He used to tell the. Workers to vote for him and he will get us promotion. About six months after he came to my house and gave me a bag. I do not know what was in it. Mohammad Yousif stopped coming to my house and I used to ask him to take back that bag, put in my house, but he did not care for that. 15 days prior to this incident, I again asked Mohammad Yousif to take back that bag, but again he did not care for that.
On the day of incident I was in my house alongwith my son. I wanted to fix a nail on the wall with the article in that bag. That article was in solid state. As I made stroke with that article that immediately bursted with a blast. As a result of which I and in. Son were injured."
12. On 8th March. 1975, the consent of the Government of Sind Home Department as required under section 7 of the Explosives Act 1908, was obtained for the prosecution and trial of the appellant under sections 3, 4 and 5 read with section 6 of the Act.
13. On 11th May, 1975, P. W. Fateh Mohammad took one pear-bomb and one dynamite bomb to an isolated place, about 7/8 m Outside Karachi of the High Way, from Karachi to Hyderabad and exploded the pear type bomb. It created a big sound and damaged the portion of the rock, it had bit. The dynamite like bomb, with a fuse fitted in it, was also exploded, which made a loud sound and the splinters spread all over, hitting the rock, as well as, injuring the witness and his assistant.
As a result of the tests, it was opined that the bombs contained some high explosives.
14. Since scheduled offences were alleged to have been committed, the challan was submitted, after completing the investigation, in the special Court, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975.
15. The appellant in his statement had admitted that on 24th February, 1975, he was residing in the quarter No. S-3/144 Saudabad, alongwith his were Mst. Shamim Bano, and his son Imran Hussain.
He has further admitted that a bomb did explode on that day at about 11-30 a.m. In his house; but he explained that on that day he had a guest, by name Mir Mohammad Baqi Baloch, residing with him. His were (Shamim Bano) was not present and had gone to her office, on duty. He further sated that at about 10.45 a.m. Baqi Baloch also left. After about five minutes, there was a knock at the door. He came out and found a man standing outside, inquiring about Baqi Baloch, saying that he had to deliver something to him. That man gave a bag, containing objects, looking like `honey biscuits'. The bag was taken by him and kept on the bed inside the house. He went to the bath room. His son Imran had picked up the bag (packet) and brought it to him in the bath room, saying that it contained biscuits and he (appellant) should give some to him. He picked up the bag, when accidentally it fell down from his hand, resulting in the explosion, causing injuries to him, as well as, his son Imran. He, however, denied having wilfully caused the explosion. He also denied, being in possession of highly explosive-live-bombs. He further denied having seven highly explosive bombs in his possession and under his control, which were recovered from his house. He stated that whatever was contained in the plastic bag, was exploded. He also denied having asked his mother-in-law to remove the bombs from inside the house and throw them in the gutter. He denied having made any con--fession. About the search and the recovery of seven bombs, splinters etc. From his house he stated that he had gone away to the hospital and denied that anything like the explosives, were lying inside his house. He further stated that the witnesses were of bad character. He claimed no enmity with any of the witnesses and could not state, as to why they were giving evidence against him.
16. The substance of accusation was read over and explained to the appellant and the two acquitted co-accused on 24th May, 1975, that they had entered into conspiracy, with an unlawful object, of being in possession of explosives and causing explosions in Pakistan, and in pursuance of the said conspiracy, they had procured and manufactured explosives. It was further alleged that on 24th February, 1975, at about 11.30 a.m., the appellant had caused the explosion at the house No. S-3/ 144 in Saudabad Malir, which was in his possession and the said explosion caused grievous injuries to him and injuries to his son Imran. It was further alleged that the appellant was found in possession of four hand made bombs (grenades) containing sensitive explosive material including fulminates and three dynamite sticks with fuses.
17. Since the co-accused Mohammad Yousuf and Israr Ali Bhopali were acquitted, it is unnecessary to reproduce the substance of accusation against them. The appellant had pleaded not guilty and was tried for offences under sections 3, 4 and 5 of the Exclusive Substances Act and by itself, or by reason of section 6 of the Exclusive Substances Act.
18. In support of the case the prosecution has examined 15 witnesses and one Court witness, whereas, the appellant had examined Abdul Baqi Baloch in his defence.
19. We have heard the learned counsel Mr. Khalid M. Ishaque for the appellant and Mr. Manzoor Hussain for A.-G. For the State.
The main point raised by Mr. Khalid Ishaque, the learned counsel appearing for the appellant, is that the learned Judge at the time of announcement of the judgment, dated 16th May, 1975 found the appellant guilty under sections 3 and 4 (b) of the Explosive Substances Act and convicted him for the said offences and sentenced him to R. I. For seven years and to pay a fine of Rs. 1,000 or in default to suffer further R. I. For one year. The appellant was further sentenced for an offence under section 4 (b) of the Explosive Substances Act and was sentenced to R. I. For seven years and to pay a fine of Rs. 1000 and in default to suffer R. I. For one year. It is argued by Mr. Khalid that subsequently, on realising that no offence was indicated under section 4 (a), the section was changed to 4 (b), by the order dated 20th May, 1975 which reads as under:- "By a clerical error in Para 36 of the judgment, instead of recording a conviction under section 4 (b) of the Explosive Substances Act, section 4 (a) has been written. I have therefore, corrected this error today.
The Superintendent of Jail, Karachi, be also intimated to read section 4 (b) instead of 4 (a) of Explosive Substances Act in the warrant of commitment."
20. It has been argued by the learned counsel that by reason of section 369, Cr. P. C., the Court had no inherent powers to amend its judgment from 4 (a) to 4 (b) of the Explosive Substances Act It is submitted by Mr. Khalid that the Court trying the case, had reached the conclusion, that no case under section 4 (a) was made out He contended that under the circumstances the appellant was entitled to acquittal. Mr. Khalid maintained that after the judgment was announced, it could not subsequently, be altered, into one under section 4 (b) of the Explosive Substances Act. Therefore he argued that changing of the section, after the judgment was announced amounted to taking away the valuable right of the appellant, for which, he was not given an opportunity to defend himself. It was contended that the judgment of the learned Judge, in the instant case, was as much a judgment of the High Court, as would be the judgment of the Appellate Bench of the Court and the judgment would be subjected to the limitations imposed by section 369, Cr. P. C. It was finally argued that after the judgment had been signed, no substantive change would be permissible under section 369, Cr. P. C. And no Court, when it had signed its judgment, shall alter or review the same, except to correct the clerical error.
21. We have perused the judgment, as well as, the order passed on 20th May, 1975 and we are of the confirmed view, as has been explained in the order by the learned trial Judge, that by a clerical error in paragraph 36 of the judgment, instead of recording a conviction, under section 4 (b) of the Explosive Substances Act, section 4 (a) had been written, which error was, accordingly, corrected on 20th May, 1975. We find no reason to disbelieve that assertion and we are satisfied that it was a clerical error, which was corrected by the aforementioned order. The authorities cited by Mr. Khalid are clearly distinguishable, where fresh paragraphs were added, which were not at the initial stages, included in the judgment.
22. The next point taken up by the learned counsel is that section 3 of the Explosive Substances Act talks of malicious and unlawful acts, whereas in this case, it could not be said that the act of the appellant was malicious and unlawful. The definition of "malice" as defined in Straw Wood Judicial Dictionary, 1Vth Edition, Volume III, is, ill-will against a person. But in its legal sense, it means, "a wrongful act, done intentionally, without just cause or excuses". It was, therefore, contended that malice refers, not to intention but to a motive, and there is no such motive proved in the case. It was there--fore argued that section 4 of the Explosive Substances Act, which talks of the intention to cause an injury, etc. Is not established from the evidence on the record.
23. The learned counsel next argued that P. W. 1 Anisur Rehman's was a man of the prosecution and appeared to be under the control of the Police. Likewise the other witnesses in this case viz. Muhammad Iqbal, Buban Mirza and Mohammad Wasi were tutored witnesses being under the control of the police, whereas Rashid Umar Khan and Fateh Mohammad were employed with the Bomb Disposal Platoon and were only the experts, who had given opinion without assigning the reasons and could not be classed as independent witnesses. Likewise A. C. M. Ashiq Hussain, who had recorded the confession was also placed in the category of witnesses, who were under the influence of the Police, The confession was attacked on the general grounds that it was exculpatory and was not voluntary and true. Since the confession was ruled out of consideration, by the learned Judge, it is not necessary to discuss its legal implications. The confession, when it is read, clearly shows that it is exculpatory and cannot be considered against the appellant as a piece of evidence.
24. We have very carefully considered the pieces of evidence led by the prosecution in support of the case against the appellant. There is ocular evidence of witnesses who had reached the quarter of the appellant immediately after the explosion. Their version is supported by the recoveries of live and exploded, bombs and the splinters etc. The appellant had the injuries on his person. His fingers were blown of, with the blast. The son of the appellant was also injured. From the circumstances of the case, the intention as is alleged, is clearly indicated. The evidence of the Explosive Experts leaves no doubt in our mind that the possession of such dangerous explosives could be, for no other purpose, other than what the appellant was charged. We find that the guilt of the appellant has been established beyond any reasonable doubt. Accordingly we uphold the conviction and dismiss the appeal.