' MUHAMAD NAWAZ ABBASI, This criminal appeal by Muhammad Ibrahim He1mi alias Abu Abdullah Mohtisib appellant has been directed against the judgment, dated 22-121990, given by the Judge, Special Court Nol (Punjab) for Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi, by virtue of which the appellant was convicted and sentenced to imprisonment for life twice under section 402-B, C.P.C., and section 4 of the Explosive Substances Act, 1908, separately with a fine of Rupees one lac on each count and in default thereof to suffer R.I. For two years on each count. The two sentences for the above charges were ordered to run consequently with the benefit of section 382-B, Cr.P.C.
2. The appellant, a young man of 28/29 years, an Egyptian national having arrested in a case registered at Police Station Airport, Rawalpindi, under sections 402-A and 402-B, CRC., read with sections 4 and 5 of the Explosives Substance Act, 1908, and under section 13 of the Arms Ordinance, 1965, was challenged to face the trial for the above charges before the Special Court for Suppression of Terrorist Activities Rawalpindi and Islamabad.
3. Precisely, the facts in the background as contained in the complaint Exh.P.J. Lodged by Muhammad Nawaz Qureshi, Company Commander 'F' Company of the Airport Security Force, Karachi, P W.17, are to the following effect:--- ' That on 24-11-1989 Company 'F' of A.S.F., Karachi was on duty from 0200 to 0800 hours. The complainant took charge of the Airport at 0200 hours who was informed by the outgoing Company Commander, namely, Marwat Khan that Flight No,SV-367 . Booked from Islamabad for Al-Riadh and Jeddah was diverted to Karachi Airport at 1915 hours on 23-11-1989 on receipt of an information on telephone about the presence of explosive in the aircraft. The flight in question landed at 2015 hours on 23-11-1989 at Karachi Airport and the passengers were escorted to the transit lounge. The hand carried and accompanied baggage was unloaded and placed near the conveyer belt for checking and delivery to the passengers. During this process, one bag having found unidentified at the conveyer belt was checked through screening machine by A.S.I. Shaukat, machide operator, who declared the s"ue doubtful. Whereupon, A.S.I. Muhammad Banaras, upon search of the said bag found a box in it which contained a watch with the battery cell and some other material, which were removed to some safe place away from the aircraft and the runway. Muhammad Ayub S.I. Of Equipment Section checked the same with explosive detector and then Moeen-ud-Din Deputy Director, Civil Defence Bomb Disposal Karachi, was called who arriving at the spot defused the bomb. After completing the boarding, the flight was ready for departure when once again all the passengers having deboarded were brought to the Transit Lounge with their baggage, where a passenger, namely, Gul Rehman son of Bahadar Khan, Passport No,E-799406, Ticket No,065-9212- 820-9903, Seat No,245, I.D. Card No,138-86-519157 was detained as suspects alongwith his two companions and the unidentified baggage was handed over to Waqar Hussain S.O. (FIU) for interrogation and investigation. The flight having cleared was allowed to proceed to its destination.
However, during the course of investigation, the appellant having found the actual culprit was taken into custody and upon completion of the investigation, he was challaned to face the trial.
4. The prosecution in support of its case has produced a large number of witnesses at the trial.
Balchtiar Ali P.W.1, Flight Operation Officer, Saudi Arabia Airlines at Islamabad, deposed that he was called by the Airport Security Officer in his office at 1820 Hours on 23-11-1989 and directed him to visit the Control Room of the Airport Security Force, where he was informed about the bomb on board of Flight No,SV-367. He immediately conveyed the message to the Captain of the aircraft who had already changed his direction to land at Karachi Airport.
' Bashir Ahmad P.W.2, Group Captain/Airport Manager, stated that on 23-11-1989 at about 6-45 p.m.
Jahangir Butt, Supervisor in Civil Aviation Authority, Islamabad Airport, informed him to telephone that he had received a letter addressed to the Aiport Manager through a taxi driver containing threats to Saudi Flight SV-367. According to this witness, he made necessary arrangement through the concerned officials of Airport Security Force for conveying the information to the Pilot Saudi Flight No,SV-367. He also contacted the Civil Aviation Authorities at Karachi and passed on the information to the Director of Operation at Karachi Airport. In the meanwhile, he received telephonic call that a person, namely, Abdullah of Arabic origin demanded ransom to be delivered at his address located in Street No,30, F-8, Islamabad. This information was conveyed to the Security Officer in the Emergency Control Room at the Airport which was onward delivered to Islamabad police. He also contacted Karachi Airport to know the approximate time of Flight No,SV- 367 and to ensure that the emergency precautions were taken. The arrival of the aeroplane at 2030 hours was confirmed by the Airport Control Tower Karachi.
' Muhammad Jahangir Butt P.W.3,Vigilance Supervisor at Islamabad Airport stated that on 23-11- 1989 at about 6-45 p.m. He was on duty in the Hall in front of domestic arrival lounge when a taxi driver, namely Pervaiz delivered three Khaki colour envelopes Exhs.P-1 to P-3 containing letters P.1/1- 2, P.2/1-2 and P.3/1-2 to Airport Manager stating that a passenger had requested him to deliver the same to the Airport Manager and he taking the impression that the said envelopes were meant for V.I.P. Movements took the same to the Airport Manager. The contents of these letters disclosed that explosive substance was put in Flight No,SV-367 of Al-Saudia. Immediate efforts were made to apprehend the person who handed over the envelopes to the taxi driver but he could not be traced. The Airport Manager was informed with delivery of letters in question to him.
' Zafar Mahmood P.W.4 has stated that the letters in question were retained in the office of Airport Manager received through Pervaiz taxi driver and confirmed the statement of P.W.3 Muhammad Jahangir Butt.
' Pervaiz Ahmad P.W.5 who is a taxi driver admitted the taking of the letters from the above said unknown person for onward transmission to the Airport Manager he handed over the same to Muhammad Jahangir Butt P.W.3. The witness giving the description of the person who handed over to him these letters narrated in the circumstances under which said person approached him and disappeared. The witness had identified the appellant as the same person who requested him to deliver the envelopes to the Airport Manager Islamabad in the identification-parade held in Adiala Jail on 14-12-1989.
' Abdul Ghafoor P.W.6, another taxi driver, giving the description of the appellant stated that Pervaiz Ahmad driver was seen by him standing with the appellant in the Airport Hall at the time when two flights from Karachi and Jeddah had arrived at Islamabad. He correctly identified the accused in the Court as the same person who delivered the envelopes to Pervaiz Ahmad taxi driver. The appellant was arrested on 13-12-1989 from Islamabad near the Embassy of Royal Saudi Arabia on the pointation of this witness. At the time of arrest of the appellant, an attache case P-6 containing the clothes and other articles of personal use of the appellant along with two electric wires, four pencil cells, two small fuse wires, a battery VIMNUS, hand battery plastic made and number of other articles including the notebooks, maps, papers, religious books, photo copies of some books on literature, religious, military strategy, medicines and explosive weapons, visiting cards, boarding card and six .32-bore pistols with live bullets were also recovered from the accused. From the personal search of the appellant, the Pakistani currency, dollars, wrist watch etc. Were recovered and taken into possession.
' Sher Ahmad P.W.7, driver of taxi pick-up No,IDT-6034 deposed that the appellant hired his taxi on 23-11-1989 from Aabpara Market for Airport to reach at the airport at 5-30 p.m. He took the accused to the airport at the appointed time and after staying there for 10/15 minutes took him back to Islamabad towards Faisal Mosque from where the appellant took him to opposite Ayyub Market in Street No,30. The witness during the identification-parade of the appellant in Adiala Jail on 14-12- 1989 identified the appellant as the same person who had hired his taxi on 23-11-1989.
' Talib Hussain P.W.8 identified the accused as the same person who made a telephonic call from his shop on some date of November, 1989, before half an hour of arrival of police party at the shop in search of the appellant.
' Muhammad Farooq P.W.9, a duty officer at the airport as subordinate of Airport Manager stated that initially the appellant tried to approach him to deliver some letters and later Muhammad Jahangir Butt informed him about the receipt of till letters in question through the taxi driver and the plantation of a bomb in the flight in question.
' Khalid Farid Malik P.W.11, Supervisor, Customers Service, Saudi Airlines, Rawalpindi, on receipt of information regarding the landing of Saudi Flight SV/367, a direct flight from Islamabad to Al- Riyadh at Karachi Airport and plantation of bomb in it, obtained the photocopies of threat letters from the concerned officials which were produced by him before the Investigating Agency.
' Khurshid Ahmad Khan P.W.13 was Station Manager for Saudi Arabia Airlines, Karachi. On receipt of information of planting a bomb in the flight informed his colleagues at the airport and on arrival of the aero plane, he with the help of authorities arranged shifting of the passengers to the transit Hall. The aeroplane was searched by A.S.F. And bomb disposal squad. The hand-baggage was thoroughly checked and carefully screened. An unclaimed piece of baggage having found unidentified was searched and a number of articles including the electronic appliances, two small bags containing explosive substances, one match box, two detonators, a battery cell and such other articles were recovered. The lunch box found in the bag also contained explosive with bomb.
' Muhammad Iftikhar P.W.14 Customers Services Agent Al-Saudia, Karachi Airport also made a similar statement.
' Raja Bashir Ahmad, S.H.O., Police Station Airport Karachi, P.W.15, inspected the airport premises. He prepared inventory of the articles kept in an unidentified bag P-87 and sent the complaint for registration of case. Thereafter, the investigation was handed over to the D.S.P. C.I.A., of the concerned circle.
' Moeen-ud-Din P.W.16, Deputy Director, Civil Defence and Officer in charge of Bomb Disposal Services, Government of Sindh, Karachi, after the inspection of the recovered explosives substance and bomb issuing a certificate confirmed through report. Given by him that the device could be termed on international terrorism pattern. He in his report further clarified that the recovered material commonly used for bombing and the same being explosive component could be used for blasting and bombing.
' Muhammad Anwar Qureshi, Security Officer, Airport Security Force, P.W.17 has verified the landing of flight at Karachi and unloading of the baggage and the passengers for the purpose of checking.
He confirming the prosecution story deposed that one bag P-87 found unclaimed contained explosive substance as mentioned above was opened in his presence and the explosive material contained therein was taken into possession by the Investigating Officer. He certifying the statement of Moeen-ud-Din P.W.16 stated that the inspection of the explosive substances and preparation of investory was made in his presence.
' Muhammad Raman A.S.I. P.W.18, Shaukat Ali A.S.I., A.S.F., P.W.19, S.I. Abdul Salaam A.S.F. Karachi, P.W.20 Muhammad Ayyub, S.I., Airport Security Force, Karachi, P.W.21, having made similar statements witnessed the recovery of the explosive substance from the unidentified bag P-87 during the search of luggage of the passenger at Karachi Airport.
' Muhammad Amanullali P.W.22, Assistant Director F.I.A., Peshawar stated that the appellant in his company pointed out the shop from where he purchased the pistols and the explosives in question. The accused then took this witness to a commercial typewriting Institute located in Peshawar Cantt. From where he got typed the letters which were delivered in the office of Airport Manager, Islamabad. The Investigating Officer took into possession type-writer from the said Institute.
' Hamad Hussain Siddiqui P.W.23, a watch maker, stated that the time-piece P-96 was brought by the appellant to him for repair.
' Shakeel-uz-Zaman P.W.24 is the owner of the Commercial Institute who confffmed the visit of the appellant to his Institute and got letters in question typed from him. The witness stated that on his query about the contents of the letters, the appellant said that it being part of his study was an ordinary matter.
' Muhammad Mukhtar P.W.25 has unloaded the baggage from the trolleys at Karachi Airport in the apron area and after identification of the baggage by the passengers loaded the same in the container. According to him, bag P-87 was left unidentified and unclaimed which was unloaded from Al-Saudia Flight SV-367. The same was taken into possession by the Security Officer Muhammad Itftikhar P.W.14.
' Zafar Mahmood P.W.28, a handwriting expert after making comparison of the documents recovered during the investigation by the Investigating Agency and submitted positive report under his signatures.
' P.W.30 Ch. Muhammad Ali Magistrate 1st Class, Islamabad, recorded the confessional statement Exh.P.W.13/3 of the appellant under his signatures.
' Abdul Aziz Saeed Alahmadi P.W.31 stated that he is a Arab National and having gone to Afghanistan for Jihad and while going back to his native land was requested by the accused to take bag P-87 to Jeddah from where somebody will collect the same from him at the airport.
According to this witness, he alongwith the accused and some other Mujahideen reached Islamabad Airport on 23-11-1989. The bag P-87 was handed over to him by the appellant at the airport and during the checking of the luggage at Islamabad Airport, lunch-box P-96 was recovered from the bag P-87 and the concerned staff after formal inquiry handed over the bag and the box to him and the bag was placed on conveyer belt for boarding. After taking off from Islamabad, the aeroplane made an emergency landing at Karachi Airport. He having found the bag P-87 lying in a suspected manner detached himself from the said bag. He stated that he alongwith other passengers was accommodated in a hotel at Karachi and later was sent to Saudi Arabia. After arriving at Jeddah Airport, he asked Tarki Almalubi, a fellow passenger, to bring the matter to the notice- of Usama-bin-Ladin, Sheikh-ulMujahidin and himself left for Madina- tulMunawwara. He narrated the incident to the officials of the External Ministry and subsequently, the F.I.A., officials contacted him in Saudi Arabia. His statement was recorded by Mr. Sajjad P.W.34 as official of F.I.A. The witness stated that he left Islamabad on 23-11-1989 possessing Saudi Arabian Passport through Flight SV-367 and the relevant entry on his passport was at page 17. The photo- copy of the relevant pages of his passport have been placed on record as P. W .31/1 and P .W .31/2 .
' Junaid Sultan P.W.32, In charge Emmigrakon and Anti-Smuggling, Islamabad Airport, partly investigated the case. He took into possession the letters P.1/1-2, P.2/1-2 and P.3/1-2 from the Airport Manager.
' Malik Muhammad Hafeez, Assistant Director, Agriculture P.W. 33, on the direction of the Deputy Commissioner arranged identification-parade of the accused in the Adiala Jail on 14-12-1989. The identification-parade was held under his supervision. Pervaiz Ahmad P.W.5 and Sher Ahmad P.W.7 correctly identified the accused in the identification-parade.
' Syed Sajjad Hussain P.W.34, Deputy Director F.I.A. Rawalpindi, Shaukat Mahmood P.W.35, Inspector F.I.A., Mian Akhtar Ali P.W.36 S.P. Headquarters, Rawalpindi, Gulzar Ahmad Chughtai P.W.37, Assistant Director F.I.A. And Najabat Hussain Inspector F.I.A. Crimes Branch, Rawalpindi, P.W. 38, partly investigated the case.
5. The appellant in his statement under section 342, Cr.P.C., denied the prosecution allegation and his connection with the crime property recovered from the aeroplane allegedly belonged to him.
He further denied the delivery of Bag P-87 to Abdul Aziz Saeed Alahmadi P.W.31 for taking the same to Jeddah through Flight SV-367 on 23-11-1989. He also denied the obtaining of his specimen signatures in presence of Malik Muhammad Hafeez P.W.33. He taking plea that he was shown to the P.Ws. Before the identification-parade pleaded that he was involved in the false case for the reason that he voiced against the Kingdom of Saudi Arabia for not sending Mujahidin to Afghanistan for Jihad. The Saudi Government having not tolerated the proposal for not calling back the Mujahidin, deputed Abdul Aziz Saeed Alahmidi P. W.31, an employee of the Saudi Intelligence, who with a view to achieve the goal made the appellant scape goat.
6. Learned counsel for the appellant contended that (a) from the evidence brought on record, it is not proved that the recovered articles were explosive substance. The report of the Expert of Bomb Disposal Squad revealed that it was only a device and not actually a bomb to be used for blasting.
(b) The bag P-87 allegedly was loaded in the aeroplane from Islamabad and its recovery at Karachi could not be linked with any of the passengers. The appellant without travelling through the flight in question neither could load the same as accompanied baggage nor any direct evidence could be traced and collected to connect the appellant with the bag. (c) The sole statement of Abdul Aziz Saeed Alahmidi an accomplice subsequently recorded at Jeddah to the effect that the bag in question was handed over to him by the appellant in the departure Hall as Islamabad Airport is not enough to link the appellant with the bag and prove the charge. (d) He having not disclosed the name of the appellant as owner of bag P-87 during the process of search and recovery, was not a truthful person to be believed and consequently the possession of the bag could not be attached with either to any passenger or the appellant except the said witness himself. (e) Notwithstanding the contents of the bag, the same having not proved to have been owned or delivered by the appellant, to the witness, the charge against him was groundless. (f) The witness while disclosing the loading of the bag at Islamabad and unloading at Karachi and subsequently its delivery at Jeddah could not shift the burden to the appellant. (g) The evidence brought on record even if is believed as such against the appellant, no case of hijacking under section 402-B, P.P.C., and under Explosive Substances Act, 1908, was made out without any physical involvement, only on the basis letters in question allegedly handed over by him to a taxi driver to deliver the same to the Station Manager Civil Aviation Authority. At Islamabad Airport which was not evidence of link of the appellant with the bag. Therefore, the charge of attempt to hijack the aeroplane under section 402-B, P.P.C., is not proved directly or indirectly. He next contended that the appliances, namely, electric wires, the detonaors, fuse and such other articles recovered from the bag may be individually components of bomb but the same were not definable as a bomb as such and the bag containing such articles being not in possession of any person, therefore, the article in question with mechanical process could not automatically be used as a bomb. The same were also not usable as explosive and, consequently, the charge under sections 4 and 5 of the Explosive Substances Act, 1908, also remained unproved.
7. Mr. Riaz-ul-Haq Gillani, learned counsel appearing on behalf of the complainant argued that the appellant is an Egyptian national who went to the Islamabad Airport through a taxi driven by Sher Ahmad P.W.7 at 5-15 p.m. On 23-11-1989. He was identified by the driver as the same person who travelled with him. The appellant was also correctly identified by Pervaiz Ahmad, another taxi driver to be the same person who approached him at the Airport for delivering the letters in question to the Airport Manager. Bashir Ahmad, the Airport Manager has confirmed the receipt of telephone calls before the receipt of the letters in question through the Airport Security Force. Learned counsel contends that the evidence of identification, and the judicial confession made by the appellant before a Magistrate at Islamabad was a strong piece of evidence against him. Learned counsel further contended that the evidence of Abdul Aziz Saeed Alahmidi a Saudi national to whom the appellant handed over the bag P-87 to take the same to Jeddah provided a direct proof of ownership of bag and the terrorist activities of the appellant. He argued that individual facts being chained with each other without any breakage sufficiently proved the guilt of the appellant beyond any doubt. He further argued that while giving comulative effect to the evidence, the same would lead to the only conclusion that the appellant and no one else was involved in the crime. In reply to the contention of the learned counsel for the appellant, he submitted that the physical presence of a person for the purpose of hijacking is not necessary and such purpose could be achieved through remote control under threat of seizing of Aircraft. According to him, the letters by virtue of which the appellant demanded ransom by placing the explosive substance in the aeroplane was a sufficient act to endanger the lives of about three hundred passengers by destroying the aeroplane and, thus, in addition to an offence under section 402-B, P P.C., he has also committed an offence under section 4 of the Explosive Substances Act, 1908. The learned counsel argued that if the device would have not been detected, there was every possibility of an explosion in the aeroplane. He summing up his arguments submitted that the prosecution having brought ample evidence direct and circumstantial has proved the charges under section 402-B, P.P.C., read with section 4 of the Explosive Substances Act, 1908, against the appellant. Learned counsel for the State supported the arguments of the learned counsel for the complainant.
8. We have heard the learned counsel for the parties at length and perused the record with their help. The main stress of the learned defence counsel is that the offence of hijacking as defined under section 402-B, P.P.C., is not made out without the physical control of the aeroplane and consequently the appellant cannot be held guilty of hijacking. There are number of questions to be determined for the purpose of disposal of the present appeal. Firstly, whether to constitute an offence under section 4 of the Explosive Substances Act, 1908, the possession of explosive substance should not be conscious and intelligent and also direct or mere knowledge of possession without physical control of the explosive substance is enough. Secondly, whether without intending or involving danger to life or serious injury a person can be convicted for the offence under section 4 of the Explosive Substances Act, 1908. Thirdly, whether without the aid of any other substance, the explosive as such is enough to cause danger to life or serious injury and will constitute an offence under section 4 of the Explosive Substances Act, 1908. Fourthly, what are the essential ingredients of hijacking as defined in section 402-A, P.P.C., the offence of hijacking undoubtedly can be committed with or without physical presence of a person in the aeroplane.
The hijacking is possible through remote control by way of seizing the aeroplane or control of the same by any means or method. Before discussing the sufficiency or otherwise of the evidence to connect the appellant with the commission of offence in this case, it is essential to determine the question as to whether in the given circumstances, the offence of hijacking as defined under section 402-A, P.P.C., was actually committed and further the articles recovered from the bag Exh.P-87 can be defined as explosive substance under section 2 of the Explosive Substances Act, 1908, for the purpose of an offence under section 4 of the said Act. Hijacking has been defmed under section 402-A, P.P.C., as under:--- "Hijacking-whoever unlawfully, by the use of force or by threats of any kind, seizes, or exercises control of, an aircraft is said to commit hijacking."
' The hijacking as defmed in section 402-A, P.P.C., is an offence punishable under section 402-B, P.P.C., whereas in general terms, the hijacking is a highway to be used as a route on the land, water, or in the air. Hijacking generally is defined as robbery of goods while in transit and may involve robbery only of goods or both vehicle and goods. The highway has been defined in Black's Law Dictionary, Fifth Edition, as under:--- "A free and public roadway, or street; on which every person has the right to use. In popular usage, refers to main public road connecting towns or cities. In broader sense, refers to any main route on land, water or in the air. Its prime essentials are the right of common enjoyment on the one hand and the duty of public maintenance on the other. Robinson v. Faulkner, 163 Conn. 365, 306 A.2d 857, 861.
' The term 'highway', as generally understood, does not have a restrictive or a static meaning, but it denotes ways laid out or constructed to accommodate modes of travel and other related purposes that change as customs change and as technology develops, includes areas other than and beyond the boundaries of the paved surface of a roadway."
' Before making the offence of hijacking part of the Pakistan Penal Code, permanent statute, it was declared an offence by virtue of Martial Law Regulation No,29 on 25th of January, 1978 which is read as under: "(1) This Martial Law Regulation shall come into force at once and shall be deemed to have taken effect on the fifth day of July, 1977.
(2) Whoever commits or attempts to commit or conspires to commit the offence of hijacking or abets the commission thereof, shall be punished with death or such lesser punishment or combination of punishments as are provided for in Martial Law Order No,5.
' Explanation.---The expression 'hijacking' shall mean taking over the control of any aircraft on ground, or in the air, by use of force, or show of force, or threat to use force, or threat to cause injury, or by causing injury to the aircraft, or any passenger or any member of the crew of the aircraft, or any person connected with the security or maintenance of the aircraft, on ground or in the air."
' Prior to making hijacking an offence through the above referred Martial Law Regulation, Pakistan was signatory of the Convention for the Suppression of lawful seizure of aircrafts (called Hague Convention) which was signed on 16th of December, 1970. The other Convention for the Suppression of unlawful acts against the safety of Civil Aviation (called Montreal Convention) was signed on 23rd of September, 1971. These conventions were rectified by Pakistan on 28th of November, 1973, and 24th of January, 1974, respectively. The subject-matter of Article 1 of the Hague Convention relates to the act of violence on the board, destruction of an aircraft direction or through some device and communication of false information of causing endanger to the aircraft.
The second Article of the said Convention relates to the attempts and accomplices whereas Article 3 places an obligation upon the State party to the Convention to make the offence described under Article 1 punishable with severe penalties. Despite taking the most modern and sophisticated measures for the security of the aeroplanes from the offence of hijacking, possibility of use of a device not commonly or specially known to visualise the source of any danger, that is, other than the sophisticated weapons, and fire-arms, the toys the articles made of plastic, electronic apparatus and such other things of ordinary nature and common use.
9. There is no need to enter into the discussion of any inconsistency of section 402-A, P.P.C., with the above said international Conventions, which can be followed by the States individually for the purpose of framing the law for fixing the responsibilities, liabilities and penalties for violation of internal Law of a State so enacted on the subject, but no person can be convicted on the basis of these Conventions through the machinery of criminal administration of justice of the State signatory of such Conventions without adopting it as law of the said State. The intentional law bring not applicable as national law to the citizens of an individual State as such, therefore, the distinction in the definition of Hijacking in the International Conventions may not relevant as such for the purpose of constituting an offence of hijacking under section 402-A, P.P.C., punishable under section 402, P.P.C., in the given facts in Pakistan, but it provide a guide line to ascertain true character of transaction. Resuming to the question, whether under the given circumstances, an offence under section 402-A, P.P.C., is made out and was actually committed by the appellant fulfilling the essential ingredients, namely.--
(i) the act must be unlawful;
(ii) it must be through use or show of force;
(iii) it contained threat of any kind; and
(iv) to seize or control the aircraft.
' The offence of hijacking is completed if the above elements are proved even without the physical presence of offender. The use of show of force or by threat of any kind including expression of words orally or in written form or any other visible sign showing the intention of the offender to seize or control an aircraft is enough to complete to offence of hijacking. The above referred acts susceptible of being looked or to be observed as such would definitely be unlawful acts and would constitute the offence of hijacking. In the present time, the offences of hijacking, bomb blasting and such other offences of terrorism are committed through remote control and indirect methods. The artificial articles namely, the electric appliance, artificial machines and weapons in the form of plastic toys, guns, pens and watches, if are used as weapon with threats of commission of offence, the offence is completed and the offender cannot take the plea that the artificial weapon being not convertible to be used as actual weapon, he has committed no offence. The commission of offence is not only depends on the result to be achieved, but if the element of mens rea to commit an offence is traceable and intention through visible sign is exposed even without any overt act, the offence can be said to have been committed. Thus, the combination of the intention with the action exposing such intention would bring the act under the definition of an offence. This is true that a person is deemed innocent unless he is proved to be guilty through strong and admissible evidence- and generally in criminal law, the charge is proved either through driver or circumstantial evidence. In case of direct evidence, the reliability depends upon the probative value of the evidence through the settled principles whereas in the cases of circumstantial evidence, the basic consideration is that the offence allegedly committed by a person must be incompatible with any reasonable hypothesis of the innocence of that person. Thus, in cases of circumstantial evidence, the standard of judging the criminality of an act may not be different but each circumstance must be linked with other and if there is no break in link of circumstances, there can be no difficulty to reach at a definite conclusion. The fundamental principle of universal application in the cases depending on circumstantial evidence is that in order to justify the inference ' of guilt, the incriminating fact must be incompatible with the innocence of the accused or the guilt of any other person and incapable of explanation upon any other reasonable hypothesis than that of his guilt. The circumstantial evidence may some time be conclusive but it always needs narrow examination to exclude any possibility of fabrication and to exclude coexisting circumstances which would weaken or destroy the inference of guilt. In a case in which there are indications of designs in the preparation of a case resting on circumstantial evidence, the Court must be on its guard against the possibility of being misled into a false inference. Therefore, the essential principles applicable to the scrutiny of proof adduced if not followed in drawing an inference in such cases, the same would result in failure of justice. The circumstances of an individual case may or may not lead to an inference of guilt but for the purpose of conviction considering such circumstances cumulatively if it can be concluded that none else but the accused has committed the crime, the conviction will follow on the evidence through the facts proved as incompatible with innocence of the accused. In cases where more than one possible interpretation of the circumstantial evidence can be made, the interpretation favourable to the accused must be adopted unless there is some strong reason not to adopt such interpretation, therefore, the Court has to examine the probabilities in the light of circumstances of each case and the lack of direct evidence connecting the accused with the commission of offence does not mean that the liability of guilt cannot be fixed. There is heavy onus on the accused to furnish explanation for the circumstantial evidence, if no explainable on any hypothesis consistent with the total innocence of the accused and this onus cannot be discharged merely on the basis of probabilities and suggestions of remote hypothesis. Thus, unless the circumstantial evidence reasonably assailed a reasonable mind that the allegation is doubtful, such benefit cannot be artificially extended by preconceived notion.
10. The present case rests on direct as well as circumstantial evidence. The prosecution collected evidence at three places of three phases of the transaction. The first portion of story relates to Islamabad Airport from where the flight in question had to take off for Al-Riyadh and the mischievous act of sabotaging of the aeroplane was detected. The second part is completed at the Karachi Airport where the aircraft on the information upon diversion was landed and was unloaded. A detailed search of the passengers as well as their luggage was made and the bag P- 87 having found unclaimed was taken into custody. The search of the said bag led to the recovery of certain items including a box which contained a watch with battery cell and a bomb blanket which could be used as a time bomb. The third phase of the transaction was completed at Jeddah after the arrival of the aeroplane where Abdul Aziz Alahmadi P.W.31 disclosed the name of the appellant as owner of the bag which was handed over by the appellant to him for its delivery to a person at Jeddah but while in the transit, he visualizing some foul-play did not disclose this fact for fear of involvement in the case. Thus, keeping in view the three parts of the transaction, it would be essential to make a detailed analysis and scrutiny of the evidence to ascertain the nature of offence. The evidence is also divided into two parts namely direct and circumstantial consisting upon the material collected Islamabad Airport, the recovery of bag P-87 containing articles to be used as explosive at Karachi and the disclosure If the involvement of the appellant in the matter by Abdul Aziz Alahmadi at Jeddah, Saudi Arabia. The identification of the appellant as the same person who at Islamabad Airport handed over the letters in envelopes to a taxi driver namely Pervaiz for delivery to the Airport Manager is established through direct evidence of taxi driver. The prosecution was not required to prove the origin of letters and the hand writing of the appellant except the delivery of these letters by the appellant, yet some evidence was brought on record through which the preparation of the letters and the signatures of the appellant on the same was proved. The evidence of delivery of letters to Airport Manager through Muhammad Pervaiz taxi driver at Islamabad Airport, the Handwriting Expert and the identification of the appellant by said Muhammad Pervaiz and another taxi driver namely Abdul Ghafoor who brought the appellant to Airport from Islamabad has abundantly proved the initial burden of act of the appellant to commit the offence. The letters in question contained the demand of payment of certain amount as ransom by the concerned authorities in Saudi Arabia and in case of non-fulfillment of the said demand, the aeroplane would be sabotaged through the explosive kept in it. The letters also contained threat of hijacking the aeroplane and its destruction. The matter came to the notice of the Station Manager and the concerned authorities in the F.I.A. After the aeroplane left Islamabad Airport for Jeddah and an information was conveyed to the concerned authorities at Karachi. The crew of the aeroplane was asked through the Civil Aviation Authorities for diversion of the aeroplane and its landing at Karachi Airport. In consequence thereto, the aeroplane landed at Karachi. The passengers were brought to the Launge and the baggage was unloaded and a detailed search was made through use of sophisticated machines. One bag P-87 having found unclaimed was taken into possession and upon search of certain items namely, a box containing a watch with battery cell and a bomb blanket were recovered from the said bag. These items were got checked by Moeen-ud-Din, Deputy Director Civil Defence, Bomb Disposal Squad, who detected the appliances to be used as bomb. The detonators, the wires and other components of a bomb were found in the bag in question. All these items having seized were produced in evidence. The threats passed through letters in question have a direct link with the recovery of bomb and the detonators etc and, therefore, the evidence being connected with each other created a strong chain of circumstances to bring the case within the ambit of offence of hijacking punishable under section 402-B read with section 2 and section 4 of the Explosive Substances Act, 1908. It would have been difficult to locate the accused through the evidence collected at Islamabad and Karachi, if he would have not been traced through the evidence of Abdul Aziz Alahmadi. This witness was a companion of the appellant as Mujahid in Afghan War with Russia and while travelling through the flight in question was going to his homeland. He categorically stated that the appellant without disclosing the contents of the bag in question requested him to take the same with him to Jeddah where somebody would collect the same on behalf of the appellant. The witness having no suspicion took the bag from the appellant for its delivery at Jeddah. This is in the evidence that immediately after taking off the flight, there was a rumour and murmuring among the passengers of some mischievous activities on behalf of some person. The witness with a view to avoid any complication did not own the control of bag or disclosed about its owner. He only disclosed the secrecy of the matter after feeling himself safe in his own country, to the Saudi Arabian authorities and, thereafter, he was called as a witness to Pakistan by the Investigating Agency. This is important to note that till the arrival of the aeroplane at Jeddah, the whereabouts of the appellant could not be known as the two taxi Drivers and an official of the F.I.A. Who received letters at the Islamabad Airport would identify the appellant by face but they were not helpful to locate him.
Thus, in the there was no compulsion for Abdul Aziz Alahmadi P.W.31 to make a lisclosure of the matter as neither he was a respect nor it was in the knowledge of any so that he was to the appellant. The appellant being stranger to the concerned authorities in both the countries was not supposed to be falsely named as an accused in the case. The disclosure about the appellant by P.W.31 without any compelling reason appears to be an act of a responsible person under fear of God. The voluntary statement of the witness receives full weight to be relied upon as a strong evidence against the appellant. The evidence brought on record do not suggest a slight reason for false implication of the appellant, an Egyptian national. The contention of the learned counsel that Abdul Aziz Alahmadi P.W.31 being an accomplice, his evidence without corroboration could not be made basis for the conviction apparently receives attention. An accomplice is a person who is guilty associate in crime or who sustains such a relation to criminal act that he can be jointly charged with the principal accused, but a person who assisted another in good faith or under compulsion or threat is not an accomplice. The assertion of the witness in the present case that he being known to the appellant and his companion as Mujahid in Afghan War took the responsibility of delivery of his bag at Jeddah in good faith cannot be called an accomplice. He being known to the appellant and having no malice or grudge against him independently and truelly deposed and his evidence being of unimpeachable character alone was sufficient to prove the guilt. The letters in question containing threats and the recovery of bomb, etc., have provided a strong corroboration to the guilt of the appellant. The evidence of witness even as an accomplice if is confirmed through independent source in material particulars with identity of the culprit, it is sufficient to maintain the conviction.
11. The appellant upon arrest was put to identification parade in the Jail in 14-12-1989 in the supervision of P.W.13 an Assistant Commissioner Islamabad. The appellant was identified by P.W.5 and P.W.6 as the same person what arrived at Islamabad Airport and handed over the envelopes containing the letters in question to be delivered in the office of the Airport Manager. The appellant also pointed out the places from where he arranged explosives and prepared the letters in question. The specimen signatures of the appellant having obtained by the same Assistant Commissioner were sent to the Handwriting Expert and on comparison it was found that the signatures on the letters in question were in the hand of the appellant. The appellant while making the judicial confession before a Magistrate 1st Class, Islamabad, P.W.3 on 28-12-1989, has given the whole detail of the occurrence. The judicial confession of the appellant stood corroborated by the evidence of the recoveries of different items and the statement of P.W.31. The contention of the learned counsel that the judicial confession having retracted by the appellant, the same could not be used as an evidence has no force. This is settled principle that the confession; whether retracted or not can be used as an evidence if confidence inspiring. The real test is not the retraction but the substance of the statement and the contents thereof are confirmed through other source and the circumstances, the mere retraction would not be sufficient to reject such statement. Reference may be made to the State v. Minhun alias Gul Hassan PLD 1964 SC 813. The Magistrate who recorded the judicial confession of the appellant has categorically stated that he had observed all formalities in proper manner before recording the statement and after completing the same, the appellant was sent to the judicial lock-up. The appellant was arrested on 13-12-1989 and his statement was recorded on 28-12-1989 i,e,, on the last day of his physical remand. It is pertinent to note that if the appellant confessed his guilt under compelling circumstances or through coercion, the same could be during the currency of the physical remand and not on the last date when it was made known to the appellant that he would be sent to Jail and would not be given back in the custody of police. Therefore, there was no fun in making confessional statement by the appellant before the Magistrate on that occasion if it was untrue. The confessional statement, therefore, despite retraction being confidence inspiring did not loose its evidentiary value. The confessional statement of the appellant corroborated by the evidence of P.W.31, the recovery of letters of threats containing signatures of the appellant, the identification of the appellant by the independent witnesses and the recovery of bomb etc., from the unclaimed bag directly linked with the appellant proved his guilt.
12. The arguments of the learned counsel that the material recovered from the bag P-87 even if presumed that the same could be used as explosives, could not be used as such unless it was to be brought in a proper form and operated by some person and, thus, even an attempt to commit the crime having not proved, the conviction was not lawful, is without foundation. As earlier observed, the actual happening of some event is not necessary for the purpose of Commission of an offence under section 4 of the Explosive Substances Act, 1908, and section 402-B, P.P.C., Explosive has been defined in section 2 of Explosive Substances Act, 1908, as under:--- ' Section 2.--Definition of 'explosive substance', shall be deemed to include any materials for making any explosive substance; also any apparatus, machine, implement, or material used, or intended to be used, or adapted for causing, or aiding in causing an explosion in or with any explosive substance; also any part of any such apparatus, machine, or implement".
' Section 4 of ibid Act is read as under:--- ' Section 4. Punishment for attempt to cause explosion, or for making or keeping explosive with intent to endanger life or property. Any person who unlawfully and maliciously:-
(a) does any act with intent to cause by an explosive substance, or conspires to cause by any explosive substance, an explosion in Pakistan of a nature likely to endanger life or to cause serious injury to property; or
(b) Makes or has in his possession or under his control any explosive substance with intent by means thereof to endanger life, or cause serious injury to property in Pakistan or to enable any other person by means thereof to endanger life or cause serious injury to property in Pakistan; ' shall, whether any explosion does or does not take place and whether injury to person or property has been actually caused or not, be punished with (imprisonment for life or any shorter term which shall not be less then seven years).
It is noticeable that there were about three hundred passengers on the board of plane which was put under the fear of blast and if the material placed therein would have been used, the aircraft would be blown to pieces. The act creating a sense of insecurity among the passengers was sufficient to attract the provisions of section 4 of the Explosive Substances Act, 1908. The undescribable mental anguish of the passengers at that time with no hope of lives in the aeroplane was the most heinous situation and, therefore, no exception can be taken to the guilt of the appellant.
13. The review of the evidence brings us to consider the contentions of the learned counsel that from the prosecution story and the evidence brought on record, it could be only an act of sabotage the aeroplane and not hijacking the same. Hijacking as defined under section 402-A, P.P.C., is to seize or control the aircraft. In the present case, the ransom was demanded with threat of destruction of aeroplane and after departure of flight, undoubtedly there was no physical control of the appellant on the aeroplane but by placing the explosive material thereon, the appellant brought it under his control. Thus, it was not only an act of sabotage but also hijacking as defined under section 402-A, P.P.C. The result is that the charge against the appellant under section 402-B, P.P.C., read with section 4 of the Explosive Substances Act, 1908, is proved beyond doubt.
14. In the light of the above discussion. We finding no substance in the appeal dismiss the same.
The conviction and sentence awarded to the appellant by the learned Trial Court is hereby confirmed with the modification that both the sentences under section 402-B, P.P.C., and section 4 of the Explosive Substances Act, 1908, shall run concurrently.