' WALI MUHAMMAD KHAN, J.--- Abdul Baqi son of Qeemat Khan and Saadat Khan son of Saiful Malook along with their co-accused (since acquitted) were tried by the Judge Special Court, Peshawar under section 4 read with section 6 of the Explosive Substances Act, 1908 for having been found in possession and control of explosive material, with which they intended to unlawfully and maliciously endanger the life and property of Professor Burhanud Din, an Afghan Leader, in the premises of University Town, Peshawar on 26-10-1986 at about 19-10 hours and were convicted and sentenced to imprisonment for life each. Both of them have filed separate appeals registered as Criminal Appeal No, 96 of 1988 and Criminal Appeal No, 97 of 1988 respectively and since both the appeals arise out of the same judgment, we propose to dispose of both of them through this single judgment.
2. The background of the case is that Akhtar Ali Khan, D.S.P., C.I.D., Peshawar (P.W.3) received a secret information that Abdul Baqi convict-appellant along with other saboteurs have chalked out a plan in order to cause bomb explosion in or near about the house of Professor Burhanud Din to do away with his life. He accordingly arranged a trap to apprehend the saboteurs before they are able to execute the plan and for the same end in view, he along with police party proceeded to the spot in two different vehicles. On reaching there, he parked his -motor car in which Mukhtiar Ahmad, Inspector C.I.D., Peshawar (P.W.2) and a Constable in plain clothes were also seated, on one side of Arbab Road while the Pickup carrying the other group of the police party was parked on the other side of the said road. At about 7-10 p.m. The car being driven by the convict-appellant Abdul Baqi entered Arbab Road from the side of Jamrood Road and crossed them and stopped after covering some distance. Both the convicts-appellants alighted from the car, having something in their hands and proceeded towards the bungalow of Professor Burhanud Din. No sooner they reached the turn of Alflah Street, they were apprehended by the police. Abdul Baqi appellant was found in possession of a shoe Dabba in his hand, containing a bomb while Saadat Khan appellant was having a plastic bag containing some earth. Appellants were accordingly arrested and Akhtar Ali Khan D.S.P. (P.W.3) recorded Murasila Exh.P.A./1 wherein he narrated the entire incident and sent the same to the Police Station University Town, Peshawar where, on its basis, case F.I.R. No, 584 of 1986, copy Exh.PA. Was duly registered by Abaidullah, A.S.I. (P.W.14).
3. The bomb recovered from the possession of Abdul Baqi appellant, on scrutiny, was found to be bearing No, 03M-72(6)-018-80 and in another circle words UTK/10 were written. On the other side of the bomb were found words 03M-72/913-33-80. Attached to the bomb was a wireless detonation system oblong Pl/A which was later on detached by the Expert namely Major (Rtd.) Ghulam Hussain Khan (P.W.18), from the bomb. The bomb Exh.P.3, wireless detonation system oblong Pl/A, the plastic bag containing earth Exh.P.2 and the shoe Dabba Exh.P.1 were taken into possession by Akhtar All Khan D.S.P. (P.W.3) vide memo. Exh.P.W.2/1 in the presence of Mukhtiar Ahmad, Inspector (P.W.2). The motor car Toyota Corolla blue color No, Karachi 101-541/1979-80 Exh.P.4 in which convicts-appellants had travelled to the place of occurrence was also taken into possession vide memo. Exh.P.W.2/2 in the presence of Mukhtiar Ahmad (P.W.2). Both the accused appellants were searched and the articles. Recovered from their personal search were taken into possession vide memos. Exh.P.W.2/3 and Exh.P.W.2/4, respectively. The articles recovered from the search of Abdul Baqi also included a key chain Exh.P.7, having two China keys stated by Abdul Baqi appellant to be the keys for unlocking the lock of Room No, 53 of the Doctor's Hostel duly allotted to Dr. Gul Akbar co-accused (since acquitted). Akhtar Ali Khan (P.W.3) then prepared the site plan Exh.P.W.3/2 with all its footnotes correctly. Relieved from the aforesaid preliminary investigation on the spot, accused Abdul Baqi led the police party consisting of Akhtar All Khan (P.W.3) and Mukhtiar Ahmad (P.W.2) to Room No, 53 of Doctor's Hostel situated in Khyber Hospital, Peshawar and pointed out the place over the top of the almirah where remote control Exh.P.12 was lying in a hand bag Exh.P.11 and they were taken into possession vide memo. Exh.P.W.2/5. Bakhatzada son of Fazal Ellahi (P.W.11) was found present in the room and he, on inquiry by the police, disclosed himself to be room-mate of Dr. Gul Akbar. He was also searched and besides other articles, a China key Exh.P.15 admitted by him to be the key of the lock of Room No,53 was recovered. The recovery memo. To this effect is Exh.P.W.2/6 on the file. The plan of Room No,53 is Exh.P.W.3/3. Major (Rtd.) Ghulam Hussain Khan (P.W.18) was summoned by the Investigating Officer at 12-30 hours to C.I.D. Office (Choki No,2) and was given the bomb to be defused. On opening the packet he found charge demolition of Russian origin with electric detonator connected to a radio receiver and he disconnected the bomb from the receiver and further defused it. He was also shown a radio transmitter reported to be the control of the bomb receiver and in his opinion this type of arrangement is made for explosion with wireless equipment's for remote control. The radio transmitter was also opened to clear it from suspected plantation of explosive. According to his opinion the bomb was alive and was dangerous. At the time of his examination in Court as P.W.18 he was shown the articles recovered from the appellants and at their instance and the witness admitted them to be the same which he had examined on 26-10-1986 and his report Exh.P.W.18/2 duly signed by him related to the same articles. On the third day viz. 28-10-1986 Room No, 53 referred to above, was unlocked with the key recovered from the possession of Abdul Baqi appellant and certain articles Exh.P.7 to Exh.P.27 were recovered therefrom and were taken into possession vide memo. Exh.P.W.4/3. On 1-11-1986 accused Saadat Khan led the police to the place where from he had collected earth and placed in the plastic bag for covering the bomb therewith and the Investigating Officer took into possession earth weighing two kilos (Exh.P.5) from the same place vide memo. Exh.P.W.4/6. Police custody for 14 days was obtained from the IIlaqa Magistrate w,e,f, 27-10-1986 vide application Exh.D.8 and the accused-appellants remained in such custody till they were produced before the Magistrate for recording their confessional statements. Accused Saadat Khan was produced before Mr. Khudadad Khan M.I.C., Peshawar on 6-11-1986 and he after observing the necessary formalities recorded his confessional statement vide Exh.P.W.1/3 and the certificate appended to it is Exh.P.W.1/4. Similarly on 8-11-1986 accused-appellant Abdul Baqi was produced before the same Magistrate and he recorded his confessional statement too vide Exh.P.W.1/1 and the certificate appended to it is Exh.P.W.1/2. After completion of investigation of the case, the requisite sanction for the prosecution of the accused-appellants Exh.P.W.4/12 and Exh.P.W.4/13 alongwith the sanction for the prosecution of their co-accused, were secured from the District Magistrate, Peshawar and thereafter the case was put in before the Judge Special Court, Peshawar for trial.
4. The accused-appellants along with their co-accused were charge-sheeted under section 4 read with section 6 of the Explosive Substances Act, 1908 to which they pleaded not guilty and claimed trial. The prosecution produced Mr. Khudadad Khan M.I.C. (P.W.1), Mukhtiar Ahmad, Inspector (P.W.2), Akhtar Ali Khan D.S.P (P.W.3), Noor All Khan, Inspector (P.W.4), Zardool Khan D.S.P.
(P.W.5), Madad Khan (P.W.6), Muhammad Fahim H.C. (P.W.7), Attaullah Khan H.C. (P.W.8), Atlas Khan (P.W.9), Amjad Javid (P.W.10), Bakhatzada (P.W.11), Tasleem Sarwar (P.W.12), Dr. Haji Gui (P.W.13), Abaidullah A.S.I. (P.W.14), Abdul Aziz (P.W.15), Muhammad Fayyaz alias Shamoo (P.W.16), Gulab Khan (P.W.17) and Major (Rtd.) Ghulam Hussain Khan (P.W.18) in support of its case. Of them Mr. Khudadad Khan M.I.C. (P.W.1), Mukhtiar Ahmad Inspector (P.W.2), Akhtar All Khan D.S.P. (P.W.3), Bakhatzada (P.W.11), Tasleem Sarwar (P.W.12), Abdul Aziz (P.W.15) and Major (Rtd.) Ghulam Hussain Khan (P.W.18) are relevant for the disposal of the instant appeals whereas the remaining are either of formal nature or concern the case of the acquitted accused and as such there is no need to discuss their evidence in detail. P.Ws. Akhtar Ali Khan D.S.P. (P.W.3) and Mukhtiar Ahmad, Inspector (P.W.2) are the star witnesses and on their deposition the prosecution case mainly hinges. They are apparently disinterested witnesses having no axe to grind against the convicts-appellants. Both of them are responsible police officers and were duty bound to protect the lives and property of the inhabitants of the area falling within their respective jurisdiction. On receipt of the secret information that Abdul Baqi appellant along with other saboteurs had planned to do away with the life of Professor Burhanud Din, an Afghan Leader, by planting a bomb near his house at the instance of Kabul regime, they arranged the police party to watch the premises and in consequence of the trap, were able to apprehend Abdul Baqi accused-appellant red-handed with the bomb along with his companions before they succeeded in causing the explosion. According to them, they along with the police party were present in the vicinity of the bungalow of Professor Burhanud Din when the accused-appellants came there in car No,101-541/Karachi 1979-80 and passed by them but stopped after covering some distance. They got down from the car and proceeded towards their destination and while the two appellants were crossing Alflah Street, Abdul Baqi appellant was holding a shoe Dabba in his hand while Saadat Khan appellant was having a plastic bag containing some earth. The two P.Ws. Caught hold of them and recovered the bomb concealed in the shoe Dabba. They were accordingly arrested and after the completion of preliminary investigation on the spot, they also led the two P.Ws. To Room No, 53 of Doctor's Hostel situated in Khyber Teaching Hospital, Peshawar where at their instance Walki Talki remote control was recovered. Khudadad Khan M.I.C. (P.W.1) recorded the confessional statement Exh.P.W.1/1 of Saadat Khan appellant and Exh.P.W.1/3 of Abdul Baqi appellant wherein both the appellants made a clean breast of their earlier activities in connection with the bomb blasts and also inculpated themselves in the instant crime. Bakhatzada (P.W.11) in his statement deposed that he was an employee of Shiraz Bargain Centre situated on University Road and that he was acquainted with Dr. Gul Akbar (acquitted accused) being his co-villager who was occupying Room No, 53 of Doctor's Hostel through a valid allotment order from the concerned authorities on account of his being posted there. According to him, he used to visit Dr. Gul Akbar and stay with him for nights and so did Abdul Baqi and Saadat Khan appellants. He deposed that on 17-10-1986 one Inam of Peshawar City brought Car No, 101-541 Karachi (Model 1980) blue color to their bargain center for sale and at about 12 noon on 26-10-1986. Abdul Baqi appellant visited the Bargain Centre and expressed his desire to purchase the said car and wanted him to bring the car to the Doctor's Hostel so that he may be able to show it to his companions for seeking their advice in the transaction. The witness accordingly took the car there and found the accused-appellant alongwith a third person present in Room No,53. He asked Abdul Baqi appellant to have a try of the said car in his presence but Saadat Khan appellant told him that Abdul Baqi was himself a good driver and that he would try the car himself whereupon the key of the car was handed over to Saadat Khan appellant who in his turn passed it on to Abdul Baqi appellant. The witness added that he stayed behind in the room and the accused-appellants along with the third man who had a shoe Dabba in his hands, went away. After about 45 minutes the two appellants were brought back to the room by the police and a Raxeen bag containing remote control was recovered from the top of the almirah. He alongwith Abdul Baqi and Saadat Khan appellants were taken to Police Post No,2 by the police. Tasleem Sarwar (P.W.12) the owner of the said car, deposed that Inamul Haq, his friend had taken the said car to Shiraz Bargain Centre for sale but later on he learnt that his car was involved in a bomb case and therefore, he produced the relevant documents thereof to the police. Abdul Aziz (P.W.15) is the proprietor of Shiraz Bargain Centre situated on Jamrood Road, Peshawar and he admitted in his statement in Court that Bakhtzada (P.W.11) was working as a broker with him. Major (Retired)
Ghulam Hussain Khan (P.W.18) examined the bomb, defused it and disconnected the same from the receiver. He was also shown a radio transmitter reported to be the control of the bomb receiver and according to him this type of arrangement is made for explosion with wireless equipments for remote control. He deposed that the bomb was alive. The accused-appellants and their co- accused were examined under section 342, Cr.P.C. They denied the allegations brought out against them in the prosecution evidence. They flatly denied the recovery of the bomb and the other articles from their possession and also denied having made any confession before the Magistrate.
They neither wished to be examined on oath nor produced any defence. On the appraisal of the evidence so produced before him, the learned Special Judge found the accused-appellants guilty of the charge levelled against them, convicted them under section 4 read with section 6 of the Explosive Substances Act, 1908 and sentenced them each to suffer imprisonment for life under the said section. Their co-accused namely Dr. Gul Akbar and Rameez were given the benefit of doubt and acquitted of the charges. The car was ordered to be returned to the owner as it was not claimed by any of the accused.
5. We have heard learned counsel for the convicts-appellants and the learned State counsel for considerable length of time and have minutely gone through the record of the case. The crux of the arguments of the learned counsel for the appellants is that--
(1) that the ocular witnesses are police officers who were interested to implicate Abdul Baqi appellant whom they knew before-hand and that they being interested witnesses, their evidence has to be scanned with due care and caution; ' that the recovery memos. Regarding the bomb and other articles are not witnessed by any independent person from locality though in the normal circumstances the inhabitants of the area were supposed to be present at the spot at the time of occurrence;
(iii) that according to the prosecution evidence there was a third man sitting in the same car at the time of the arrest of the appellants by the police but he has not been shown as arrested or present at the time of occurrence by the police which renders their conduct highly doubtful;
(iv) that Khudadad Khan M.I.C. (P.W.1) was not Illaqa Magistrate and that his selection for the recording of the confession of both the appellants, on different dates, suggests that he was willing to sign prepared typed confessional statements Exh.P.W.1/1 and Exh.P.W.1/3, and
(v) that the alleged confessional statements were neither voluntary nor true and were extracted from the appellants through duress and coercion practised upon them during the preceding 14 days when they were kept under police custody.
6. The learned State counsel, on the other hand, submitted that the prosecution had established its case beyond any shadow of doubt through the production of independent responsible witnesses coupled with the recoveries of connected materials and also the confessional statements of the accused-appellants duly corroborated by other independent circumstantial evidence.
7. We have given our anxious thought to the learned arguments of the learned counsel for both the sides. As stated earlier the eye-witnesses namely Mukhtiar Ahmad Inspector (P.W.2) and Akhtw All Khan D.S.P. (P.W.3) are disinterested witnesses and merely because they are police officers their evidence cannot be brushed aside particularly, when their deposition gets corroboration from other independent circumstantial evidence. They apprehended the convicts-appellants red- handed with the explosive substances and it is not even the case of the defence that there was any animosity between the convicts-appellants and the P.Ws. So as to implicate them falsely for the offence of the like nature. We are, therefore, convinced that the version narrated by them is free from all reasonable doubt. As regards the non-production of disinterested witness to support the recovery of the explosive and other material from the possession of the accused-appellants on the spot, suffice it to say that in this part of the country no one volunteers to incur the ill will and wrath of the saboteurs to witness the recovery memo. And appear as witness at the time of trial against them. It has also been noticed that normally the persons cited as memo. Witnesses from the public are forced to resale from their version at the trial. In the instant case there may have not been responsible citizens present at the time of the recovery and, therefore, the mere fact that the recovery memos. Are not witnessed by persons from the public cannot reflect on the conduct of the police officers.
8. No doubt according to the statement of Bakhatzada (P.W.11) a third man also accompanied the accused-appellants when they were leaving the premises of Doctors' Hostel in the car with intent to try the same, and it is also specifically mentioned in both the confessional statements that the convicts-appellants were accompanied by a third man known as Zalmai' seated in the rear seat of the car when they were surrounded by the police and apprehended along with the explosive material on the spot but as explained in detail in the earlier part of the judgment, the police party apprehended the appellants when they had already got down from the car at some distance from them and had covered a few paces towards the bungalow of Professor Burhanud Din and, therefore, the possibility that the third man stayed behind in the car and slipped away in the melee which might have ensued after the arrest of the appellants cannot be excluded. The convict- appellants have not disclosed the identity of the third person uptil now. Every young man is called as Zahnai in Pashto terminology and the police without being apprised of the particulars of the third man could not be expected to lay hand upon him. Anyhow this omission on the part of the prosecution cannot cast any aspersion on the veracity of ocular witnesses so far as the involvement of the accused-appellants in the instant crime is concerned.
9. We have minutely gone through the confessional statements Exh.P.W.1/1 and Exh.P.W.1/3 of the convicts-appellants. So far as their involvement in the previous other explosions is concerned we do not consider them -relevant in any way for the disposal of the present case. The concluding .Paragraphs of the confessional statements relate to the case in hand wherein they have specifically implicated themselves with regard to the possession and control of the bomb at the time of the recovery thereof from them by Akhtar All Khan (P.W.3) and Mukhtiar Ahmad (P.W.2).
They have also admitted in unequivocal words that the Walki Talki remote control was recovered at their instance and in their presence from Room No,53 from the top of almirah lying there. It is not denied that they were brought for recording their confessional statements straight from police custody and, -therefore, according to the well-settled principle of law their confessional statements by themselves could not be considered sufficient for the conviction of the appellants unless corroborated by other facts and circumstances of the case. However, in the case in hand the confessional statements are sufficiently corroborated by the recovery of the Walki Talki from the Room No,53, the recovery of the key from their possession at the time of occurrence with which the lock of the said room could be opened, the recovery of the car belonging to Tasleem Sarwar (P.W.12) who had sent the same to the Bargain for sale coupled with the deposition on oath of Bakhatzada (P.W.11) that the accused-appellants intended to purchase the same car and had taken the same from him for the purpose of try, go a long way to furnish corroboration of the confessional statements on all material particulars. The confessional statements also received corroboration from the eye-witness account of Akhtar Ali Khan, D.S.P. (P.W.3) and Mukhtiar Ahmad Inspector (P.W.2). Keeping in view the aforesaid direct and circumstantial evidence in the case we are clear in our mind that the prosecution has established the guilt of the convict-appellants beyond any shadow of doubt and the learned Judge Special Court rightly convicted them under section 4 read with section 6 of the Explosive Substances Act, 1908.
10. The net result of the above discussion is that there is no merit in the instant appeals which are hereby dismissed, but the benefit of section 382-B, Cr.P.C. Is granted to them.