' SH. GHULAM SARWAR, J.--- On account of an explosion, at 9-15 p.m. On 2-5-1986, in Room No,97 of Qasim Hall, a hostel of-University of Engineering and Technology, Lahore, Raja Iqbal Hussain, a student of Civil Engineering/President of Imamia Students Organization and Tanseer Hussain former President of Imamia Students Organization, Sargodha and Faisalabad Divisions, were killed, while respondent/accused Abul Hassan, Safi Ullah and Kokab sustained injuries due to said blast.
On the report of P.W.3, Dr. Muhammad Mansha, Professor and Director of Students Affairs F.I.R.
No,173, dated 2-5-1986, which, set the law into motion, was registered at Mughalpura Police Station, Lahore.
2. Actually a conspiracy was allegedly hatched to cause an explosion in American Bank at Lahore.
As a sequel thereto respondent/accused and his companions namely, Tanseer Hussain and Abdul Hassan P.W.2 gathered in Room No,97, in occupation of Raja Muhammad Iqbal, where, Tanseer Hussain, brought a brief-case containing a steel box about 6" x 3", one battery cell and a watch attached to button of brief-case with a solution tape. Taking out 5/6 candle type articles from his pocket, he, then fitted it in steel box. A map, wherein, building of American Bank was indicated and -shown, was also prepared. Tanseer Hussain explained the plan of placing said brief-case in the target building. After taking out a hand-grenade from the pocket of his Shalwar, its working was demonstrated and then placed in said room. A revolver was also handed over to the respondent/accused by Tanseer Hussain. Then ablution was performed by all three, present in room, venue of incident, where after Tanseer Hussain allegedly opened the brief-case. He was trying to connect the loose wire of steel box, with battery cell, when, all of a sudden, it exploded and caused/resulted the havoc as detailed above.
3. Respondent/accused was booked therein and ultimately tried on the charge under section 3/4 of Explosive Substances Act, 1908. Such trial culminated into acquittal of respondent vide judgment, dated 4-6-1991 passed and recorded by learned Judge, Special Court, constituted under the Suppression of Terrorist Activities (Special Court) Act XV of 1975. Same has been assailed in instant appeal under section 417, Cr.P.C.
4. During trial, as many as 14 witnesses, including two injured P.Ws. Were examined by the prosecution. Abul Hassan P.W.2 testified as an approver whereas P.W.3 Doctor Muhammad Mansha is the complainant. So-called eyewitness of the occurrence, Safi Ullah, P.W.5, did not support the prosecution case and was declared hostile. Likewise P.W.10 Sohail Aftab Qureshi, a recovery witness, was declared hostile to prosecution as, he, too, opted not to support its case. Dr. Amer Ali P.W.6 conducted autopsy on dead body of Raja Muhammad Iqbal and Tanseer Hussain. P.W.11 Dr. Munir Ahmad had examined an unknown patient. P.W.7 Aslam Hayat Kalyar, Magistrate 1st Class recorded confessional statement of P.W.2 Abul Hassan while P.W.8 Sardar Sher Afghan, Assistant Commissioner granted pardon to approver Abul Hassan and directed P.W.7 Aslam Hayat Kalyar to record statement of approver as also of Safi Ullah under section 164, Cr.P.C. P.Ws.9, 13 and 14 enumerated various steps of investigation carried out by them. Remaining prosecution evidence, comprising testimony of P.Ws.1, 4 and 12 is more or less of formal nature.
5. All incriminating features figuring in prosecution case were denied by the respondent/accused, who, chose not to appear in disproof of allegations as envisaged by the provisions of law embodied in section 340(2), Cr.P.C. No witness in defense was produced either.
6. Main consideration leading to the exoneration of the respondent is the conclusion that accused Tassawar Hussain Naqvi was, in no way, responsible for causing the explosion and the prosecution had failed to bring home the guilt. Instant appeal has been resorted to, with the notion that the case did not reach its logical culmination in shape of conviction of respondent/accused.
7. Learned Assistant Advocate-General has lambatted the verdict with the assertion that faux-pas was committed in appraisal of prosecution evidence and testimony of P.W.2 Abul Hassan in particular. Also it has been impressed that sufficient corroboration is rendered by Exh.P.D. And even answer to question No,14 in the statement under section 342, Cr.P.C. As explosion and even presence of respondent at the time of incident are not denied and disputed. Learned Assistant Advocate-General has further canvassed that these aspects have direct nexus with the conspiracy designed to damage American interests. According to him, all the participants/conspirators i,e, the respondent, approver as also deceased were present in Room No,97 in the offing of execution of the plan, when, all of a sudden, blast, took place. It has been pointed out by learned Assistant Advocate-General that recovery memos. Exhs.P.O., P.Y. And statement under section 164, Cr.P.C. Of P.W.5 Safi Ullah lend due corroboration to testimony of P.W.2, who, gave details of the incident without any contradiction. It has, therefore, been maintained that the prosecution had brought on record sufficient data and material to bring home the guilt of the respondent, who, could not be exonerated and rather no other conclusion than that of his guilt could be inferred. Judgment has, therefore, been termed to be laconic and perfunctory on various counts, and reversal of the same has, therefore, been urged.
8. Conversely, learned counsel representing the respondent, has, inter alia, contended that the testimony of P.W.2 was rightly discarded as the proceedings granting him pardon and confessional statement recorded by P.W.7 Aslam Hayat Kalyar are of little significance, because, he was in police custody on the relevant day despite having been remanded to judicial lock-up on 16-12-1987.
According to him, Abul Hassan P.W.2 can neither be given the status of an approver nor his testimony is worth reliance and credence. Learned counsel for the respondent has pointed out that there is absolutely no evidence to suggest tacit consent or concord of respondent to alleged conspiracy, if any. Further pointing out his illegal confinement and orders in this context during proceedings of "habeas corpus petition". Learned counsel for the respondent, has remarked that rope was put around the neck of the respondent simply to indicate his detention under the law.
Accordingly, dismissal of appeal has vigorously been demanded.
9. Following illuminating observations made in The State v. Muhammad Sharif and 3 others 1995 SCM R 635 furnish guideline on the subject:-- "There is marked difference between appraisement of evidence in the appeal against condiction and in the appeal against acquittal. In the appeal against acquittal, the same rigid method of appraisement is not to be applied as there is already finding of acquittal given by the Court or Court below after proper analysis of evidence made or done according to law. In the acquittal appeal, interference is made only when it appears that there has been gross misreading of the evidence which amounts to miscarriage of justice. In an appeal against acquittal, Supreme Court could not, on principle, ordinarily interfere and instead would give due weight and consideration to the findings of the Court acquitting the accused. This approach is slightly different from that in an appeal against conviction in which leave granted only for appraisement of evidence, which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that acquittal carries with it two well-accepted presumption, firstly, initial presumption that till found guilty, accused is innocent, and secondly, that after the Trial Court below has confirmed presumption of innocence.
Supreme Court would not interfere with the acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible."
10. Similarly, well-settled principles for appreciation of appeal against acquittal as expounded and laid down in 1994 SCM R 1928 are as follows:-
(i) that with the acquittal, the presumption of innocence of the accused becomes double; one initial, that till found guilty he is innocent, and two, that after his trial a Court below has confirmed the assumption of innocence;
(ii) that unless all the grounds on which the High Court had purported to acquit the accused were not supportable from the evidence on record, Supreme Court would be reluctant to interfere, even though, upon the same evidence it may be tempted to cornea to a different conclusion;
(iii) that unless the conclusion recorded by a Court below was such that no reasonable person would conceivably reach the same, the Supreme Court would not interfere;
(iv) that unless the judgment of acquittal is perverse and the reasons therefor are artificial and ridiculous, the Supreme Court would not interfere; and
(v) that the Supreme Court, however, would interfere in exceptional cases on overwhelming proof resulting in conclusive and irresistible conclusion, and that too, with a view only to avoid grave miscarriage of justice and for no other purpose."
11. In the instant case, fabric woven by the prosecution before trial, went into tatters during trial and exposed every crude attempt to serious and sizzling infirmities. Star-witnesses like P.W.2 and P.W.5 did not sprout a single word to ensure the respondent. Even an exercise of serious ratiocination in this context, is bound to end in smoke, because of inherent lacunas.
12. Be that as it may, only piece of evidence, testimony of P.W.2 Abul Hassan, so-called approver, stands shattered on the bare fact that he was in police custody instead of judicial lock-up on relevant day. As a necessary corollary, whole edifice, erected on his confessional statement Exh.P.D.
Is bound to crumble down like house of Cards. As a matter of fact, prosecution case stands impaired beyond repair and was rightly taken so by learned Trial Judge, who, in no, way, seems to have fallen in ignoratio elenchi while treating the testimony of P.W.2 as to be of little value. As such contentions advanced by learned Assistant Advocate-General are palpably fallacious.
13. By no stretch of imagination, deposition of P.W.2 Abul Hassan can be taken to be apodictic as if he spoke as an oracle. Seemingly he prevaricated with impunity. Such statement and that too without an iota or scintilla of corroborative evidence cannot lead to, conviction of the respondent under any canon of law. Meager evidence, adduced by the prosecution, can hardly afford valid basis for conviction of respondent.
14. When tested on the touchstone, laid down by August Apex Court, prosecution case has no legs to stand. Reappraisal of evidence, data and material on record, affirms the conclusions deduced by learned Trial Court, and rather no other view is possible in wake thereof.
15. Acquittal of respondent, accordingly, is neither exceptionable nor assailable. Appeal, concomitantly, merits dismissal and is hereby dismissed.