TANVIR AHMAD KHAN, J.- This appeal is directed against the judgment dated 20.5.1992 passed by a Judge Special Court Suppression of Terrorist Activities), Lahore, convicting and sentencing the appellant as under:-
(i) under section 302 PPC he was sentenced to death on 9 counts;
(ii) under section 307 PPC he was sentenced to ten years R.I. Twenty times;
(iii) under section 3 of the Explosive Substances Act he was sentenced to death and the whole of his property was ordered to be confiscated;
(iv) under section 5 of the Explosive Substances Act he was sentenced to 14 years R.I. With confiscation of entire property; and
(v) life imprisonment under section 4 of the Explosive Substances Act with the direction for confiscation of the entire property to the State.
All these sentences were ordered to run concurrently.
2. Briefly stated that a formal FIR (Ex.PB/1) was recorded on 14.9.1989 at the complaint (Ex.PB) sent by Khalid Masood. Inspector/SHO (PW3) at Police Station Naulakha, under section 3/4 of the Explosive Substances Act read with sections 302/307 PPC, by Muhammad Aslam (PW7). According to it while the complainant was on patrol duty along with other police officials near Domoria P.I, he received an information respecting the bomb explosion having taken place at Pak Yasar Goods Transport and shops adjacent to it. He immediately rushed to the place of occurrence along with his party men and found certain number of people had lost their lives while injured were being taken out.
They were sent to the hospital. Thereafter, he went to the hospital and prepared injury statements and inquest reports of the deceased. He prepared site plan (Ex.PJ). The relatives of the deceased declined to have conducted postmortem examination, as such, no autopsy was conducted. Since Khalid Masood (PW3) who initially started investigation of the case proceeded abroad for training as such it was entrusted to Muhammad Amal Qureshi, Inspector CIA (PW13) on 14.7.1990 under the order of DIG Lahore. This Investigating Officer during investigation on 15.7.1990 took into possession three receipts Ex.PA/1, Ex.PA/2 and Ex.PA/3 of Billies No. 2027, 2028 and 2037 (photo copies) booked through Doaba Goods Transport, Faisalabad, in the name of Pak Yasar Goods Transport, Lahore.
These bitties were got booked by Muhammad Anwar which were later on revealed actually sent by the appellant Muhammad Afzal alias Bao. The appellant got his bail before arrest. Then the appellant was arrested after his anticipate y bail was rejected on 13.7.1990. On the disclosure of the appellant during the investigation that similar goods as he had booked, were with him at Faisalabad, the Investigating Officer under his supervision sent Akbar Ali S.I. (PW 4) and Muhammad Sharif S.I. (PW6) to Faisalabad where on the Plantation of the appellant i.e packets of explosive material were taken into possession through Ex.PK on 16.10.90 from his residence situate at Nalka Kohala, Sargodha Road, Faisalabad. A book of bitties from 2001 to 2100 was also taken into possession through Ex.PL/1 from Doaba Goods Transport Company, Faisalabad. These items so recovered were handed over by them to Investigating Officer, Muhammad Amal Qureshi. Younus Ali Shah Draftsman (PW9) on 19.10.90 prepared site plan (Ex.PW and PW/1). After usual investigation challan was submitted.
3. The prosecution examined as many as 13 witnesses to establish its case. Saeed-ur-Rehman (PW1), the owner of adda Pak Yasar Goods Transport staled about the explosion which took place at his adda on 14.9.1989 at 2.15 p.m. Wherein 9 persons lost their lives and 25 sustained injuries. He stated about three receipts/bilties No 2022,2028 and 2037 taken into possession by the Investigating Officer as Ex.PA. He further stated that at the probe by the police into these bitties the appellant approached him for compromise first on telephone and then through his relatives which he declined.
4. Qurban Ali (PW2) also stated about the explosion and the damage caused by the same. His statement under section 161 Cr.P.C. Was recorded by the police after one year. He stated that he was an employee of the adda and lost hi consciousness due to explosion. After 10/12 days when discharged from hospital on checking the bitties it came to their knowledge that there were i.e- works in some pities which were booked from Faisalabad and were sent by the appellant. He himself sustained injuries and admitted in his cross-examination that when he came back from the hospital after 10/12 days he saw pities containing i.e works lying outside the adda. According to Karamat Ali (PW11) he was working as hajam on a footpath near the shop of Chemicals near Pak Yasar Goods Adda on Circular Road, Lahore. All of a sudden there was an explosion due to which he also sustained injuries. Agha Asghar Ali, Paltoon Commond Bomb Disposting Unit, appeared as PW12. He stated that on the fateful day at the asking of the police he rushed to the place of occurrence and reached there within ten minutes. He searched the area and found two gas cylinders within a distance of 100 yards from the place of occurrence. He admitted that the gas was leaking out from those cylinders which had initiated the explosion. He submitted his report Ex.PX which is to the following nature;- "The damage was caused due to the severs blast effect resulting from explosive decomposition of some chemical/material stored/kept in bulk out side the affected shops. The explosion may have been caused by burning of the LPG seemed to have leaked profusely from the LPG cylinders stacked in front of one of the shops. Two such cylinders with defective control valves were recovered from about 100 metres away from the scene of incident. These cylinders appear to have been thrown away by the severe blast effect. The outlet of one of the gas cylinders was found plugged with a wooden piece which gives strong evidence that the gas was leading before it was plugged. Both the cylinders were found partially filled when recovered from the nearby place. The gas might have been ignited accidently, resulting in high temperature, thus causing the aforesaid explosive decomposition etc."
Muhammad Amal Qureshi (PW 13) conducted the investigation. Akbar Ali, S.I. (PW4) and Muhammad Sharif, S.I. (PW 6) stated about the recovery of 5 packets taken into possession through Memo. Ex.PA at the Plantation of the appellant which were then handed over to the Investigating Officer.
4. Muhammad Amal Qureshi (PW13) conducted the investigation. He apprehended the accused after his pre-arrest bail was declined on 13.7.1990. After completion of investigation, he submitted interim challan on 15.12.90. Thereafter according to his own showing he recorded statements of injured PWs under section 161 Cr.P.C, on 15.9.1991 i.e. After two years from the date of occurrence. He admitted in the cross-examination that the accused-appellant's physical remand was obtained many a times on different dates though in another FIR No. 2/90 from which he was discharged subsequently. It is admitted that fireworks material parcels taken into possession from the accused remained lying in the malkhana from 16.10.1990 to 8.7.1991 when those were destroyed immediately prior to the start of the trial. According to Investigating Officer during all this period it never occurred to his mind that these articles might explode.
3. The appellant when examined under section 342 Cr.P.C, he denied the charge, and pleaded his innocence. He stated as under:- "PW Saeed-ur-Rehman owner of the Adda owed money for purchasing of tyres in 1986 he had been making false promises to pay him the amount of Rs.75,000/- (Seventy i.e thousand) when I pressed my demand he got me involved in this case with the connivance of police of CIA, Lahore."
We have heard the arguments and have perused the record with the assistance of the learned counsel. There are two aspects of this case; one is the explosion and the other is the appellant's role in the commission of this offence. As far as the explosion is concerned there is no denying of the fact that the same had taken place wherein 9 persons lost their lives while 25 got injured. Dr. Habibur Rehman (PW 5) C.M.O, hospital brought on record injury statements of 9 PWs who sustained injuries in the explosion.
7. The other important aspect of this case which requires determination is whether implication/involvement of the appellant has been brought on record through unimpeachable evidence. The learned trial Judge has convicted him simply on the ground that at the time of his pre-arrest bail he admitted his participation and secondly the alleged extra-judicial confession before Saeedur Rehman (PW) who had stated that the appellant's mother and other relatives approached him for the compromise. According to him he even received a telephonic message in this regard from the appellant. There is no direct evidence against the appellant, It is interesting to note that none of the witnesses had implicated the appellant directly. The recovery of 6 packets allegedly effected from him does not advance the prosecution case any further. According to report these recoveries were kept in malkhana for a period of more than one year but at the start of the trial they were destroyed, secondly the report of the Chemical Examiner qua these recoveries is as under:-
1. All the i.e packets contain material of the same nature.
2. These are small crackers, which are used in the toy pistol for creating sounds.
3. These crackers have been made in had paper tube and are filled with a compound having composition of potassium, sulphur, Charcoal and sodium nitrate.
4. This material falls in the category/group of pyrotechnics or i.e-work. Generalcy it is called.
It is pertinent to mention here that the report of the Chemical Examiner was not exhibited for the reason best known to the prosecution. The evidence of PW 12 Agha Asghar Ali, Platoon Commander, Bomb Disposal Unit, was to the effect that immediately after the explosion he rushed to the spot and his report Ex.PX has been reproduced in extension in the preceding paragraph which reveals that some explosive matrical/chemical was present outside the effected shops and due to the leakage of gas from cylinder recovered about 100 metres away from the scene of incident caused explosion. There is yet another evidence of Qurban Ali (PW 2) who sustained injuries due to the explosion under remained in hospital for 10/12 days. After being discharged from the hospital he came to the place of his work and admitted in cross-examination that when he came back from the hospital he saw pieties/bitties connecting the accused/appellant lying outside the adda. Those pieties according to him contained i.e-works. His statement was recorded after a considerable delay. This material, according to him, was lying on the road side and was not taken into possession.
7. Statement made by Karamat Ali (PW 11) is also worth consideration. According to him he used to work as hajaam on a foot-path near the shop of Chemicals near Pak Yasar Goods Adda, the place of occurrence, which supports the plea of PW 12 Platoon Commander, Bomb Disposal Unit, that leakage of gas from the cylinders initiated the explosion.
8. We are sorry to take note of it that not a single witness e.g. Manager/an employee of Doaba Goods Transport, Faisalabad, was examined to connect the accused with the commission of offence and to ascertain the authenticity as to whether or not the accused was the actual person who booked the so called pelites of explosive material/i.e-works which were still lying intact according to PW 2 even after 10/12 days of explosion. We are also sorry to take note of it that neither the investigation was conducted on proper line nor the trial Court look into consideration that not a single witness was examined to prove as to whether or not the connecting parcels were actually sent to Pak Yasar Goods Transport, Lahore, from Doaba Goods Transport Company, Faisalabad.
Likewise no corroborative evidence from any corner is brought on record regarding compromise which was only stated by Saeedur Rehman (PW 1) and appears to be the main ground of appellant's conviction. The i.e-works material recovered through memo. PK from the accused/appellant even sent through letter No. 2003- 14A dated 26.11.1990 to the Bomb Disposal Commander, Civil Defence Directorate, Punjab, was returned with the report as stated earlier that this material falls in the category/group of pyrotechnics or r-e-works which is used in toy pistol for creating sounds and.
4. We are of the view that had the learned trial Court appreciated all the afore stated aspects of the evidence, the determination of the case would have been otherwise. Any-how, for the reasons recorded we have ho option but to accept the appeal giving the benefit of doubt to the appellant and acquit him of the charges. He shall be released forthwith provided he is not required to be detained in any other case.