' MUHAMMAD ISHAQ KHAN, J.-- Said Khan son of Sheikh Gul Rehman, aged 22/23 years, appellant, has been tried by the Judge Special Court under Suppression of Terrorist Activities, Peshawar, alongwith Malang and Malook (acquitted) on the charges under section 3/6 of the Explosive Substances Act, 1908, sections 302 and 307, P.P.C. The appellant was found guilty of the charges and was accordingly sentenced to death under section 3 of the Explosive Substances Act and to the same sentence under section 302, P.P.C. (two counts). The appellant was also awarded the punishment of life imprisonment under section 307, P.P.C. (15 counts). It was, however, ordered that the sentences under section 307, P.P.0 shall run concurrently. The Murder Reference for confirmation of the death sentence is also before us.
2. The prosecution case in brief is that on 6th of May, 1986 at 9-15 a.m. An explosion took place in Bus No, PRC-4524 at Nagoman Chowk which caused the death of 4 persons (2 named and 2 unnamed) and 17 others persons received blast injuries. Muhammad Afzal Khan at the relevant time was posted as S.H.O. Police Station Daudzai. On receipt of the information about the incident he rushed to the spot and found 5/6 persons in injured condition. The others had however, been shifted to LRH, Peshawar. He, therefore, managed to shift the injured persons present on the spot to the hospital and also himself proceeded to the hospital leaving behind Abdul Ali Khan, A.S.I. On the spot. There in the hospital he found 12 persons (named in the Murasila) in the Casualty Department who had received injuries. Two other who had suffered injuries because of the bomb blast, namely, Mst. Khaibro wife of Sultan resident of Takhat Abad and Mst. Zohra wife of Samar Din, resident of Jogai, had expired. On return from the hospital to the scene he drafted the Murasila (Exh.P.A./1) wherein beside referring to the facts detailed above, he stated that he was searching for other injured of the incident and that, the incident was probably the result of subversive activities. The same Murasila was later on incorporated in F.I.R. (Exh.P.A.) by Mehmood Ali, H.C. (P.W.9) in the police station.
3. Muhammad Afzal Khan, the Investigating Officer (P.W.19) took into possession Bus No, PRC-4524 and pieces of broken panes (Exh.P.1) vide recovery memo. P.W.10/1. He also took into possession some blood-stained earth (Exh.P.2) from the place of the incident vide recovery memo.
(Exh.P.W.10/2). The Investigating Officer also prepared the site plan, Exh.P.W.19/1. He summoned Major (Rtd.) Ghulam Hussain Khan (P.W.6), the Explosive Expert, to the spot who on arrival inspected the spot and recorded his report, Exh.P.W.6/1. Statements of some of the persons were also recorded by Abdul Ali Khan, A.S.I. As the accused were not known, therefore, no progress could be made in the investigation.
4. It was on 18-1-1987 when Said khan, accused-appellant, was arrested in the instant case and on 19-1-1987 was produced before Mr. Sharifur Rehman, M.I.C. (P.W.8) for recording his confessional statement. The two co-accused of the appellant, namely Malang and Malook (now acquitted) were also produced before Mr. Behram Khan, M.I.C. (P.W.7) for recording their confessional statements.
5. As some of the accused to whom reference was made in the confessional statements of the accused, namely, Shahzada, Jenan and Naeem Khan, were not available for arrest, therefore, the Investigating Officer initiated proceedings under sections 204 and 87, Cr.P.C. Against them. After obtaining necessary sanction for prosecution of the accused as required under section 7 of the Explosive Substances Act, challan was put in Court against the appellant as well as the acquitted accused.
6. Dr. Mubarik Hussain appeared before the trial Court as P.W.13, who had examined Noor Rehman, Nisar Muhammad and Tuqadasullah on 6-5-1986 and had prepared their injury sheets, Exh.P.W.13/1, Exh.P.W.13/2 and Exh.P.W.13/3.
7. Dr. Yasmin Aslam Sethi, the C.M.O. The Peshawar (P.W.15) proved at the trial to have examined on the same day Mst. Zohra and Mst. Khaibro and prepared their injury sheets. She also stated that she had examined Mst. Istikhara daughter of Samar Din, Mst. Amtari Jan wife of Sanab Gul, Mst. Gul Hazro wife of Noor Badshah, Mst. Ali Jana wife of Sanab Gul, Mst. Gulab Bibi wife of Saifuddin, Mst.
Niaz Bibi daughter of Dilawar, Mst. Roshanai wife of Rehman Gul and Mst. Fasat alias Firasat and recorded their injury reports Exh.P.W.15/3 to Exh.P.W.15/10.
8. Behram Khan, M.I.C. (P.W.7) and Sharifur Rehman, M.I.C. (P.W.8) were also examined at the trial who had recorded the confessional statements of Malang and Malook, the acquitted accused, and Said Khan, appellant.
9. Besides this, Mst. Istikhara (P.W.1), Mst. Amtari (P.W.2), Mst. Gulab Bibi (P.W.3), Said Muhammad (P.W.4), Mst. Niaz Bibi (P.W.12), Mst. Isra (P.W.14), Mst. Hazro (P.W.16), Ghulam Habib (P.W.17) and Ayaz (P.W.18) were also examined by the prosecution as injured witnesses of the blast in question.
10. Said Khan, accused-appellant, when examined at the trial denied the allegations and pleaded innocence. Replying the question about his confessional statement he stated that the same was neither voluntary nor true, as he was kept by the police in various places where he was tortured and humiliated. He further stated that he had been arrested in a case F.I.R. No, 297 dated 31-3-1986 of Police Station East Cantt.
11. After the conclusion of the trial, the trial Judge passed the convictions and sentences against the appellant as stated in the first paragraph of this judgment.
12. We have heard the learned counsel for the parties and have also perused the record of the case.
13. As is evident from the foregoing facts of the instant case, the appellant has been convicted and sentenced by the trial Judge for having been found guilty of the charges under section 3/6 of the Explosive Substances Act, 302/307, P.P.C. Only on the basis of his confessional statement. In this context it is, therefore, necessary that in such circumstances the confession of an accused person should be scrutinized with great care in order to come to a definite conclusion that the same is voluntary and true, irrespective of its having the stamp of a Magistrate that the accused was willing to do so. Realising the same difficulty and for satisfying ourselves as to whether the confession of the appellant before us is voluntary and true, we would like to point out and discuss those important facts which were though available on the file of this case besides the confession of the appellant, but unfortunately could not get the attention of the trial Judge. In Liaqat Bahadur and others v. The State PLD 1987 FSC 43 it has been laid down as under: "Section 164-- Confession--Judicial confession--Value--Duty of Court.
' In the matter of a confession the real difficulty arises in determining whether it is voluntary and true. All judicial confessions bear the stamp of the recording Magistrate's approval, who ordinarily fulfils the formalities before getting down to record the confession but compliance by the Magistrate with the routine formalities will not furnish a true and a conclusive index to the real working of the mind of an accused person to show that the confession was his violative act, pure and simple unaffected by any external circumstance and muchless is it a proof of the fact that the confession is true. Therefore, when the mind of a Judge is engaged in assessing the value of a confession he has to go much deeper than the record of the confession. The entire set up of the prosecution case and the surrounding circumstances, and the intrinsic value of the confession itself will have to be taken into account to find out if it is voluntary and true .... The judicial history presents abundant warning against the danger of placing too much reliance on uncorroborated and retracted confession."
' As has been held by the trial Judge, we too would not dispute the two parts of the charge as we arc also of the opinion that a bomb blast had taken place in a bus in which four persons lost their lives while many other passenger received injuries. However, fixing of the responsibility for such blast is, in our view, a question to be determined with care and caution especially when there is forthcoming no direct evidence with regard to the involvement of the appellant in the commission of the offence except his retracted confessional statement. Keeping in view the above object in mind, we have therefore, gone through the entire evidence of the case very carefully.
14. Muhammad Afzal S.H.O. (P.W.19) is the person who received information about the bomb blast having taken place at Nagoman Chowk, went there, sent the injured passengers to the Lady Reading Hospital for treatment, drafted a Murasila, Exh.P.A./1, sent the same to the police station for registration of the case and also conducted necessary investigation in the case. This witness has disclosed in his statement before the trial Court that he arrested Said Khan, appellant, on 18-1-1987.
No doubt in the confessional statement to the accused appellant has admitted that, " but the fact of his retraction from the said confession is also before us. Therefore, with regard to the arrest of the accused-appellant the following deposition of Muhammad Afzal (P.W.19) needs careful consideration before holding the appellant responsible for the explosion in question. The relevant portions from the statement of Muhammad Afzal (P.W.19) run as follows:- "I do not know when the accused had been apprehended by Khuda Bakhsh Inspector. The said Khuda Bakhsh, Inspector, is attached to Crime Branch. I do not know if the present accused were in custody with RT.... It is correct that I had sent this case to higher authorities for filing the same as untraced but the authorities did not agree with me and I was directed to proceed further with investigation of this case... I was asked by the D.S.P. To proceed with the investigation... All the three accused were taken into custody by me from Police Post Namak Mandi on different dates. On 18-1- 1987 when I proceeded to Police Post Namak Mandi I was informed that Said Khan accused was with the Army Intelligence."
' This witness has further admitted in his statement that the accused was handed over to him by one Khuda Bakhsh, Inspector. From the above, one can reach to a logical conclusion that Said Khan appellant was already in the custody of the Army Intelligence in connection with the investigation of some other case and the police arrested him in the present case when he was produced by Khuda Bakhsh Inspector apparently either from the custody of the Army Intelligence or from jail. To conceal the above fact, the prosecution, therefore, did not produce Khuda Bakhsh Inspector at the trial for the obvious reason that had he been produced he would have been subjected to cross-examination by the defence side with regard to the custody and arrest of the appellant. However, still the defence side succeeded to bring out from the mouth of Muhammad Afzal Khan (P.W.19) the real circumstances of the arrest of the appellant when he was being cross- examined. It is sufficient for creating doubt over the voluntariness of the appellant to make confession coupled with the fact that the Investigating Officer had once recommended the case to be filed as untraced. Thus, presumption can be drawn that when the high ups of the Investigating Officer rejected his recommendations for filing the case as untraced and directed him to proceed with the case, the appellant was, therefore, produced before the Investigating Officer for arrest in the present case by Khuda Bakhsh Inspector at a stage when the appellant had already stood the test of different methods of investigation at the hands of Army Intelligence. In these circumstances we can now also take judicial notice of the letter available on the police file addressed by the Deputy Superintendent of Police, Rural Sub-Division, Peshawar to the S.P. Rural, Peshawar wherein a request for the arrest of Rasool Khan son of Sardar, Akram, Sher Ali sons of Rasool Khan, Afghan Refugees of Yakka Ghund Camp Mohmand Agency and Abdul Qayyum, has been made in conenction with the present case, as it is clear from the said letter that the names of the culprits mentioned therein are absolutely different from the names of the accused appearing in this case.
By doing so, though the investigating agencies succeeded in saving the case from filing but the broad fact remains that the prosecution has miserably failed to connect the accused-appellant with the crime in question. The duty of the Court is to administer justice and the justice demands that in the circumstances under which the appellant made his retracted confessional statement it was the result of coercion and duress and thus the said confession is not voluntary.
15. Further, it may also be mentioned that in the surrounding circumstances of the case the said retracted confession loses the quality of its truthfulness also. There is no direct charge against the appellant as the injured witnesses of the case have simply given the manner of the bomb blast in their statements. Similarly, no independent corroboration is available for saying that the appellant was travelling A in the said bus on the said date and time when the blast took place. The injured witnesses have not charged the appellant for the commission of the offence. Furthermore, there are also contradictions in the confessional statements of the acquitted accused have shifted the responsibility of the bomb blast to the present appellant and Shahzada (absconding accused), while Said Khan, appellant had repeatedly used the word 'we' in a sense that the crime in question has been' committed by all the accused (i,e, the acquitted and absconding accused also). It is also evident from the same that it was Shahzada, the absconding accused, who purchased the bomb from Darra Adam Khel for Rs,400 and that at the time of travelling in the said bus the same bomb was in possession of Shahzada which was wrapped in a piece of cloth, who later on planted the same in the bus..The appellant has, therefore fully absolved himself from purchasing, taking and planting the bomb. It is, therefore sufficient to say that his confession is also of exculpatory nature.
Needless to say that in absence of any other independent or corroborative piece of evidence, mere confession and that too a retracted one, cannot be made basis for his conviction when it becomes clear that the same is neither voluntary nor true.
16. For the aforesaid reasons we are, therefore, of the view that the prosecution has failed to bring hom charge against the accused-appellant beyond any shadow of reasonable doubt, the benefit of which should he extended in favour of the accused-appellant. We, therefore, accept this appeal, set aside the conviction and sentences of the appellant and acquit him of all the charges in this case. He shall be released forthwith, if no required in any other case.
' The murder reference in the light of our above discussion stands answered in the negative and is, therefore, not confirmed.