1. ' ABDUL GH AN 1 KHAN KHATTAT TAK, J.-These are three separate appeals by Nisar Muhammad Khan son of Yar Muhammad Khan of Gul Abed, Asfandyar Wali son of Abdul Wali Khan of Shahi Bagh of Tehsil Charsadda and Ahmad Farooq son of Ghulam Rabbani of Surkh Dheri of District Mardan from the judgment recorded by the learned Judge of Special Court on 31st July 1975, whereby the appellants were convicted and sentenced as follows :- ' Under sections 3/6 of the Explosive Substances Act sentenced each appellant to R.I. For ten years with a fine of Rs, 5,000 or in default to further R.I. For two years.
2. ' Ahmad Farooq and Asfandyar Wali were also convicted under rule 43 of the Defence of Pakistan Rules and sentenced each to R. I. For seven years with direction that the sentences awarded to them would run consecutively.
3. ' This judgment will dispose of all the three appeals.
4. ' The venue of the occurrence is Assembly Hall of the History Society of Peshawar University where Hayat Muhammad Khan Sherpao, Senior Minister, Government of N.-W.F.P. (as then he was) was to install a cabinet on 8-2-1975 at 3-30 p.m. However, the chief guest arrived at the function a bit late and the proceedings commenced at about 4-30 p.m. With recitation from the Holy Qur'an by Mst Lal Baha (not produced). The chief guest administered oath to the office-bearers one after the other and Abdul Hamid Khan, President of the Society, addressed the House from the rostrum followed by a speech by Hayat Muhammad Khan Sherpao to whom thanks were paid by Dr. Munawwar Khan, Chairman of the History Department, in a short speech and requested the chief guest to join them over a cup of tea in the verandah outside the Hall. In the meantime Sardar Muhammad Khan, Joint Secretary of the Society (not produced) demanded donation from the chief guest who came to the rostrum to explain why the donation had not been announced by him.
5. He had hardly uttered a few words when an explosion interrupted the speech thereby causing grievous injuries to him ending thereafter in his death in C.M.H., Peshawar as a result of the blast.
6. Abdul Hamid Khan, President of the Society, was also severely wounded which ended in his death in C.M.H., Rawalpindi on 12-2-1975. About 16/17 persons in the Hall, including Dr. Munawwar Khan, some of whom appeared as witnesses in the case were also injured as a result of the blast.
7. ' Faqir Muhammad Khan (P. W. 4), Security Incharge of the Peshawar University, who was present in the Hall during the proceedings reported the incident, vide F.I.R. (Exh. PA) recorded by Said Umar Shah, S.H.O., who started usual investigation and the case was registered at Police Station Tehkal. A special team of investigation consisting of Said Umar Shah S. H.
8. 0., Mian Ajmir Shah, S.P., Masood Khan Inspector and others investigated the case and the challan of the case was put in Court against the accused appellants and the following absconding accused
(1) Amjad Ali son of Hilaluddin, resident of Surkh Dheri.
(2) Anwar Badsbah son of Muhammad Asghar of Taja.
(3) Sher Zeman son of Sher Afzal of Bachal.
(4) Shahbaz son of Abdul Hassan of Dagai.
(5) Mumtaz son of Hawaldar of Lahor (Swabi Tehsil), District Mardan.
(6) Habibullah alias Bullah of Burl Kills, Tehsil Charsadda District Peshawar.
9. ' The charge at the trial against the accused appellants was that they and the absconding accused, in conspiracy with each other and in furtherance of their common intention, were concerned in the offences mentioned above as well as under sections 121, 121-A and 123-A of the Pakistan Penal Code.
10. ' Of the absconding accused, Amjad All and Anwar Bacha are shown the moving figures in committing the offence of explosion while the accused appellants and the other absconding accused have been charged to have aided in facilitating the offence by ascribing to them each the respective role detailed in the evidence. The absconding accused have been declared as proclaimed offenders by the order of 26-5-1975.
11. ' The prosecution case, as it proceeds, is that Faqir Muhammad Khan aforementioned (P. W. 4) on the request of Karam Elahi (not produced), Lecturer of the History Department of Peshawar University made arrangements for the function and had under the direction of the Vice-President informed the proctorial board to be present there. He joined police investigation and witnessed the recovery memos. (Exh. PB to Exh. PH). According to him, there was no dais meant for sitting the guests and only a carpet was spread on the floor in the Hall for the occasion. He was present with the police at the time of search of Room No, 115, i,e,, the room of Amjad Ali absconding accused in Hostel No, 2 of the University.
12. ' Miss Zahida Niazi (P. W. 5), a student of M.A. (Political Science) was present in the function where she had been grievously injured. As postgraduate students of the Political Science of the University were also invited to the function, as such Miss Zahida Niazi with her fellow female students of Political Science entered the Hall at about 4-00 p.m. She got a seat in the first row while her class fellow Nasrin Akhtar found seat in the second row and Miss I, arzana occupied a seat to her right adjacent to her in the first row. After a short interval, the chief guest arrived and the proceedings commenced with the recitation from the Holy Qur'an. On the right side of the chief guest was sitting Rab Nawaz and Abdul Hamid, President-elect of the History Society was to his left. The oath-taking ceremony started and meanwhile an employee of the Radio Pakistan placed a tape-recorder on the ground near the rostrum and placed the mike of the tape-recorder on the rostrum.
13. ' Miss Almas Begum (P. W. 6), as mentioned by Miss Zahida, was also seriously injured whose statement in describing the function is not different from that of Miss Zahida Niazi. Miss Alias was one of the office-bearers, but she preferred to avoid taking oath for her personal reasons. As such she was amongst those who were facing the rostrum. Her evidence is that after the formalities of oath-taking were over, Dr. Munawwar Khan, after thanking the chief guest, asked him to join them over a cup of tea and meanwhile Sardar Muhammad Khan, Joint Secretary of the Society, got up and demanded donation as a result of which Mr. Hayat Muhammad Khan Sherpao returned to the rostrum. He had hardly uttered a few words by way of explanation when in the meantime a blast occurred as a result of which she (the witness) got injured.
14. ' In cross-examination, the witness stated :- "I did not hear any one crying from side of the rostrum accusing or calling someone as Chamcha. I did not see any tape-recorder before the blast in that Hall. I did not tell the police that I saw a representative of Radio Pakistan placing a tape-recorder on a table and its mike on the rostrum. I have been confronted with my police statement. It is incorrectly recorded therein that representative of Radio Pakistan came while the oath-ceremony was on and he placed a taps- recorder on a table near the wall. The police officer who examined me in Spencer Hospital, Karachi did ask me if I had seen the representative of Radio Pakistan, placing a tape-recorder on the table in the Hall and its mike on the rostrum but I flatly told him that I had not seen any such thing. I was also elected as class representative of the History Society but since I had not acquired the permission of my parents, I therefore did not go to the stage to take oath, as I had earlier told Mr. Karam Elahi, Lecturer of the History Department who was in charge of that show not to include my name in the list of office-bearers, who were required to be administered oath by the chief guest Mr. Sherpao. The stage was not on a regular dais "
15. ' Dr. Munawwar Khan (P. W. 7), Chairman of the History Department, was also seriously injured. His evidence is that on 8.2-1975, the oath taking ceremony of the office-bearers of the History Department was to commence at 3-30 p.m. In the Political Science Assembly Hall, Peshawar University, where Hayat Muhammad Khan Sherpao was to attend as chief guest. It was about 4-00 p.m. Shen the chief guest was received by him and he took him upstair to the Hall. The chief guest occupied the chair meant for him (Dr. Munawwar Khan). Therefore, he (Dr. Munawwar Khan) occupied the chair to the right of Hayat Muhammad Khan Sherpao while Abdul Hamid Khan, President of the Society, occupied the chair on the other side of Hayat Muhammad Khan Sherpao.
16. ' Miss Lal Baha recited from the Holy Qur'an and after the oath-taking ceremony Dr. Munawar Khan thanked the chief guest and asked him to have a cup of tea with them. Meanwhile, Sarder Muhammad Khan, Joint Secretary of the Society, made a request for donation to which Hayat Muhammad Khan Sherpao, in order to give a reply returned to the rostrum and while he started explaining as to why he did not make any such announcement, in the meantime a blast occurred.
17. The witness stated that during the oath-taking ceremony, he had seen a representative of Radio Pakistan placing a, tape-recorder on a table near the entrance door.
18. The evidence of all these witnesses on the material aspect of the case is :-
(1) That there was no dais in the Hall and only carpet was spread for the occasion (the photograph of the function conforms to this fact) and
(2) that the tape-recorder of Radio Pakistan was observed by most of them lying in the Hall.
19. ' Supporting the above version, Muhammad Usman (P. W. 8), Producer, Radio Pakistan, Peshawar (another injured witness) stated that he was on duty in the Hall for recording the proceedings. He observed a flash and that flash was under the level of the table and the rostrum.
20. ' Sher Hussain (P. W. 9), Photographer of the Information Department, Government of N.W. F. P., Peshawar, stated that he reached the Hall o n the relevant date at 4-15 p.m. And got photographs of the function from different positions depicting the proceedings till the episode of the explosion in which he was slightly injured. He says that "in photographs (Bah. P. W. 9/1 and Exh. P. W. 9/2) front of late Hayat Muhammad Khan Sherpao on the bottom of the photographs a portion of the back of a chair is visible". It may here be noted, however, that no chair with its back to the audience is visible in the photographs in question. We have asked the learned Advocate-General (who had been acting as Special Prosecutor in the trial Court) if he could point out the back of the chair in the photographs and he agreed with us in our observations of these pictures. In fact, a portion of the seat of a chair facing the audience to the left of the rostrum is visible in the pictures; however, there is no chair with its back to the audience. Subsequently, during the investigation of the case, Sher Hussain photographed the venue of the occurrence (the Hall). During rehearsal on the spot, photograph (Exh. P. W. 9/11) was taken on 24/25-2-75. The photograph (Exh. P. W. 9/11) was prepared in the fashion, as desired, by making back portion of the chair facing the persons standing near the rostrum.
21. ' The above set of witnesses (hereinafter called witnesses of Category 'A') have spoken not a word about a tape-recorder allegedly lying in a chair in the Hall, except the one brought by P. W.
22. Muhammad Usman, Producer, Radio Pakistan. The next set of witnesses (hereafter called witnesses of Category 'B') are the persons who claim to have been present in the Hall and deposed that tape-recorder was lying in a chair in the Hall. The first witness in this category is Muhammad Shafiq (P. W. 10), a student of M. A. Persian (Final) who, being a proctor, was to attend the function. He stated that he saw a black National Tape-Recorder lying outside the Hall on the parapet wall of the verandah at about 4 p.m. He was greeted by Amjad Ali absconder, who was already standing there and on being inquired of the owner of the tape-recorder, Amjad All disowned it. According to this witness, however, within his view Amjad Ali tried to set in motion the tape-recorder but failed in his attempt to stop. Since the witness was familiar with handling such tape-recorder in the Persian Department, therefore, he also tried in vain to set it right. The witness then got busy with other fellow students and moved from that side. However, he saw Amjad Ali absconding accused entering the Hall with the said tape-recorder. The witness claimed that Amjad All was known to him and described him as wearing dark green tetron clothes and a short coat. He did not see any friend of Amjad Ali with him standing in the verandah. The witness affirmed (Exh. P. W. 10/1) which is a tape-recorder of the Persian Department adding that it was of the same size, colour and make as the one he had seen with Amjad All absconding accused. This witness was examined by the police on 15-2-1975.
23. ' Syed Farkhanda Jan (P. W. 11), student of M. A. (Economics) stated that as an invitee, he was present in the Hall where he saw Amjad Ali absconding accused, who was already known to him, placing a tape-recorder in a chair near the rostrum and that Amjad All was hooted as 'Chamcha' in the Hall who left the Hall meanwhile. The rest of his evidence relates to the description of the proceedings.
24. ' The statement of Pervez Iqbal (P. W. 12), an injured witness, is a reproduction of what Syed Farkhanda Jan has stated, namely, that a young man (without mentioning his name) entered the Hall and placed a tape-recorder in a chair in-between the main table and the rostrum and then went away. He further stated that he had never seen that boy in the University before. He also deposed that the back of the chair was towards the audience. This witness was also examined by the Police on 15-2-75.
25. ' The evidence of Gul Amir (P. W. 13), a student of M. A. (Previous) History is also to the same effect.
26. He claimed to have occupied a seat in the rear of the Assembly Hall and had seen a chair lying in- between a large table and the rostrum on which a black colour tape-recorder was lying.
27. ' Abdul Rab (P. W. 14), a student of Final Civil Engineering, stated that he was residing as boarder in the University Hostel No, 1, Room No, 184, and that he knew Anwar Bacha absconding accused as cousin of one Quraish, a class-fellow of the witness. Anwar Bacha is alleged to have come to the Hostel in the absence of the witness and had placed in his room a chaddar of khaki colour and a box (corton) of wads tied with jute string and a chit Exh. P. W. 14/1. Written in Pashto to the effect that the articles were to be kept in his room as amanat. The witness further stated that he had penetrated his finger into the corton which was in the form of a wax with no smell. Shortly thereafter, Anwar Bacha came and took the chaddar and the dabba (corton) thanking the witness.
28. He was examined by the police on 6-3-1975.
29. ' Muhammad Sadiq Ijaz (P. W. 15) stated that he was a Steward of the Teacher Students Centre containing cafeteria and that a register is maintained for the personal accounts of each student and teacher visiting the cafeteria m regard to the articles taken by them on credit basis. According to him, Registers (Exh. P. W. 15/1 to Exh, P. W. 15/3) pertain to the months of December 1974, January 1975, and February 1975, respectively. The entries in respect of Amjad All absconding accused, a student of Zoology Department. Appear at page 44 of Exh. P. W. 15/i for the month of December 1974, in Exh. P. W. 15/2 for the month of January 1975, the mules in his name appear at page 47; while in Exh. P. W. 15/3 for the month of February 1975, the entries in his name appear at page 46. He further stated that Amjad All absconding accused used to visit the cafeteria of the Teacher Student Centre some 15/16 days prior to the occurrence along with a guest of tall stature. Before the trial Court, in photograph (Exh. P. W. 15/41, he recognized that guest of tall stature as the person who had visited Amjad All in the cafeteria. Similarly, in photograph (Exh. P. W. 15/4), he recognized Afrasiyab Khattak (marked 'B`), a boy shorter in size than the other named Bilal Shah (marked 'C').
30. This witness also stated that Exh. P. W. 15/3 (the register for the month of February 1975) is blank after the entries of 9-2-1975. Page 46 of this register shows the endorsement of the Investigating Officer dated 20-2-1975 to the effect that It was recovered and taken into possession the same on 20-2-1975.
31. ' Mian Mohibuddin (P. W. 16) posed himself to be the relation of Amjad Ali absconding accused belonging to the same family. He deposed that he bad developed mental trouble and was admitted in Mission Hospital, Peshawar, and on the day before the day of occurrence, Amjad All and Anwar Bacha absconding accused had come to the hospital to inquire about his health in the morning at 9-30 or 10 a.m. According to this witness, Amjad Ali absconding accused had a camera with him while Anwar Bacha absconding accused was in the possession of a black colour tape- recorder. A photograph was taken by Anwar with the abovesaid camera. According to him, de photograph (Exh. P. W. 16/1) was the same photo which had been taken by Anwar Bacha absconding accused in the Mission Hospital on 7-2-1975. He further stated that Amjad All and Anwar Bacha had I come to the Hospital in a Cheverolet Car Exh. P. W. 67/A with its Plate No, S. W. T.
244. Amjad All and Anwar Bacha then went away from the Hospital at 12 noon leaving the car under the care of its driven He went to sleep and after getting up the driver and the car were not found there. According to this witness, his father is a Retired Sub-Inspector of Police who is Chairman of the Peoples Party of village Surkh Dheri and that Ahmed Farooq accused appellant is a nephew of Major-General Mien Ghulam Jilani belonging to the National Awami Party.
32. ' Syed Muhammad Farooq (P. W. 17), student of B. D. S. (Final Class) in Khyber Medical College, Peshawar, deposed that he was occupying Room No, 1 in the International Hall, Peshawar University.
33. Akhtar Khan of Pashto Department was residing in the said Hall in Room No, 2 adjacent to his room.
34. On the day of occurrence, he was also invited to the function of installation ceremony of the office- bearers of the History Society. He went there in the company of Muhammad Shafiq, Waheed and Mushtae at about 3 p.m. There were several students present, including Amjad All and Anwar Bacha absconding accused, with whom he met in the veran lah in front of the Hall where the function was being held. His statement was recorded under section 161, Cr. P. C. On 17-2-1 975.
35. ' Shaukat All (P. W. 18), a Clerk of the White House Tailoring, Peshawar Cantt., produced a register (Exh. P. E. 18/1) showing the relevant entry against an order placed by Amjad Ali absconding accused at Serial No, 59a (marked Exh. P. W. 18/1) relating to one combination suit and one two pieces suit. The order in this respect was placed on 26-11-1974. The coats (Exh. P. W. 18/3 and Exh.
36. 18/4) were got identified by him amongst other coats.
37. ' Mir Rahman (P. W. 19), F. C. No, 763, P. S. Charsadda, deposed that he was on patrol duty when at about 1-30 am. On 9-2-1975, he say Amjad All and Anwar Bacha absconding accused moving about in suspicious circumstances at Tangi Chowk of Charsadda Tehail Bazar. He brought both cf them to the Police Station and lodged a report Exh. P. W. 32/D, Illat No, 37 (feted 9-2-1975. Amjad Ali absconding accused had a camera (Exh. P. W. 19/1) while Anwar Bacha absconding accused was armed with a big size tamancha.
38. ' Attaur Rahman (P. W. 20), A. S. I. Prepared the injury sheet of Ajab Shah, a student of M. A. History (Previous) Class and is a marginal witness to the recovery memos. Exh. P. H. And Exh. P. W. 20/A and of the bottle containing metallic pieces recovered from the body of Rab Nawaz Exb. P. W. 20/3. The articles mentioned in Exh. P. H. Were taken into possession by the S. H.
39. 0., Police Station, Tehkal, which were produced before him by Niser Muhammad son of Sherin of village Sherpao. He is also a marginal witness to the recovery of various other articles which have been duly exhibited. He has shown his presence along with S. I. Syed Umar Shah and Faqir Muhammad (P. Ws.) in the Hall in question at the time when the Inspector-General of Police reached there. He added that he bad found the carpet having a big hole with burning marks, a tape-recorder Exh. P. 4 with no electric wire fixed in the socket, and that the plank of the table Exh. P.
40. 1 was intact, while its parts had been broken.
41. ' Ziaur Rehman (P. W. 21), a student of Law College, Peshawar, deposed that on 7-2-75 he had, in the company of Afrasiyab Khattak, Naqeeb, Abdus Sattar and Mir Alain, gone to the polytechnic Institute, Peshawar, to attend a function at 10 a.m. He added that he had gone along with them to the said Institute in a jeep. The said jeep had been provided to them by Afrasiyab Khattak and that he (the witness) had driven it.
42. ' Sardar Khan S. T. (P. W. 22) is a marginal witness to the recovery memos. Relating to the metallic pieces and burnt pieces of tape-recorder which have been duly exhibited.
43. ' Faqir Muhammad (P. W. 23) and Muhammad Hussain (P. W. 24) deposed that at about sunset time (according to the former) and Qaza Maghrib time (according to the latter) they were planting poplar sappilngs in their fields situated in the area of village Hindko Daman when two young boys approached them and asked for their chaddars, as they were feeling cold. They further deposed that their coats were wet and thus they asked them to keep their coats with them and consequently they gave their chaddars in exchange for their coats. The coat (Exh. P. W. 18/3) was worn by a young man taller in stature while the coat (Exh. P. W. 18/4) was worn by a young man of shorter size. It may be mentioned that the aforesaid coats were taken from these witnesses by the Police on 16-2-1975. The photographs of the said two young men were also shown to them in the trial Court and they identified the same.
44. ' Murad Khan (P. W. 25), Inspector of Police, deposed that during the days of occurrence, he was posted H.
45. 0., P. S. Daudzai and that on as S. Information of Muhammad the Detective Foot Constable, he Nisar, a successful in obtaining was Muhammad Hussain the coat from P. W. P. W. 18/3), vide Bah. Exh. P.
46. W. 25/A and from covey memo. Muhammad the (Faqir 18/4), vide recovery coat (Exh. P. W. P. W.
47. 25/B. Memo. Exh.
48. ' Kachkol (P. W. 26) is a witness to the above recovery memos. (Exh. P. W. 25/A and Exh. P. W. 25/B).
49. ' Muhammad Iqbal (P. W. 27), proprietor of Nast Photo Studio, Sikandarpura, Peshawar City, deposed that he was summoned to take photograph of the function of polytechnic Institute held on 7-2-1975, wherein late Hayat Muhammad Khan Sherpa() was the chief guest.
50. ' Muhammad Taufiq Khan (P. W. 28) deposed that during thedays of occurrence, he was posted as Assistant Superintendent Jail, Charsadda. According to him, the register (Exh. P. W. 28/1 pertains to the visits of the visitors to the various prisoners in the said Jail. At Serial No, 35 of 11-2-1975, one Rab Nawaz son of Rahmat Gul had visited Misal Shah son of Yaqub Shah as well as Amjad All and Anwar Bacha absconding excused, This witness also deposed that on 9-2-1975, Amjad Ali and Anwar Bacha absconding accused were admitted in Sub-Jail Charsadda who were brought there for confinement between 10 a.m. And 2 p.m.
51. ' Qamar Gul (P. W. 29) was working as barber in Charsadda He deposed that Misal Shah prisoner (not produced) told him to carry a meassage of the two absconding accused, namely, Amjad All and Anwar Bacha, through a letter in the name of Habibullah Khan alias Bullah Khan of Burj Faridoon (P. W. 30) deposed that he was an undertrial prisoner confined in Charsadda Sub-Jail. He confirmed the statement of P. W. Qamar Gul to the above effect and further stated that Amjad Ali and Anwar Bacha absconding accused were brought to Sub-Jail, Charsadda on 9-2-1975. He saw Misal Shah prisoner along with them talking together. Misal Shah asked them if they knew anybody and they replied that they knew none. Anwar Bacha is, however, alleged to have named Bullah Khan aforesaid as his acquaintance, and on the suggestion of Misal Shah, a letter was written by him in the name of Bullah Khan under the dictation of Anwar Bacha.
52. ' Najeeb Khan (P. W. 31), Head Warder of Sub-Jail, Charsadda, has deposed that in the Register No, 1.
53. (Exh. P. W. 31/1) at Serial No, 4767 dated 9-2-1975, Amjad son of Hilaluddin, resident of Surkh Dheri, Tehsil Swabi, Mardan. Is shown as confined in Sub-Jail, Charsadda and at Serial No, 7468 dated 9- 2.1975 in that Register, Anwar Bacha son of Muhammad Asghar of village Taja, is shown as confined in the Jail. He further deposed that Amjad and Anwar Bacha were released by the order of Abdul Wakil Shah M. I. C., Charsadda, on 12-2-1975. The aforesaid register bears the thumb-impressions of Amjad and Anwar Bacha both on the occasion of their admission to and on the occasion of their release from the Jail.
54. ' Said Ahmad Shah (P. W. 32), Inspector, C. I. A. Staff, Kohat, deposed that in this case, he was included as member of the Investigation Team. On 20-2-1975, he went to Charsadda and took into possession Register Mulaqat (Exh. P. W. 28/1) maintained in Sub-Jail, Charsadda camera (Exh. P. W.
55. 19/1) produced before him by Moharir Head Constable, P. S. Charsadda, copy of Mad. No, 20 (Rozanamcha) dated 9-2-1975 (Exh. P. W. 32/C) of P. S. Charsadda, copy of F. I. R. No, 37 dated 9-2- 1975 (Exh. P. W. 32/D) from the aforesaid Moharrir. He also prepared a copy (Exh. P. W. 32/E) of the original memo. Prepared by Faqir Muhammad through which he had taken into possession '30 bore Pistol No, 49333-9 M. M. With six cartridges and bandolier. He further prepared a copy of remand order dated 9-2-1975 (Exh. P. W. 32/G) concerning An war Bacha and copy of remand order (Exh. P. W. 32/H) concerning Amjad Ali. He further prepared copies of the bail bonds (Exh. P. W.
56. 32/J and Exh P. W. 32/K) concerning Amjad All and Anwar Bacha absconding accused. He further deposed that a colour film was found in the aforesaid camera (Exh. P. W. 19/1). He took the camera to Khan Bahadur of Kohati Photo Studio, Cinema Road, Peshawar City, for the development of the colour film but as the said Khan Bahodur haa no such arrangement, he made a request for sending the camera to Lahore for the purpose.
57. ' Faqir Muhammad (P. W. 33), Moharrir Head Constable, P. S. Charsadda deposed that at about 1-55 a.m. On 9-2.1975, Mir Rahman F. C. Brought Anwar Bacha and Amjad Ali absconding accused to P. S. Charsadda. A case was registered against them at Illat No, 37 on 9-2-1975 Exh. P. W. 32/D) in the Police Station. He further said that F. C. Mir Rahman produced before him a pistol (unlicensed) with six cartridges and a bandolier and also camera. He questioned the accused but was not satisfied with their replies and in consequence he arrested them, and thereafter challaned Amjad Ali under section 55/109, Cr. P. C. And Anwar Bacha tender section 13 Arms Ordinance. On 9-2-1975, orders of Remand (copies Exh. P. W. 32/G and Exh. P. W. 32/H) for 15 days in respect of the said two accused were obtained from the Duty Magistrate, Charsadda.
58. ' Rais Ahmad (P. W. 34), Warden, Hostel No, 2, Peshawar University, deposed that Amjad All was a boarder of the Hostel of which he was the Warden and that slips Exb. P. W. 34/1 and (Exh. P. W. 34/2 (not proved under the Evidence Act) to the effect that a guest of Amjad All absconding accused had stayed for the nights between 6/7-2-1975 and 7/8-2-1975 in Hotel No, 2, had been produced before him by the Head Bearer on 7-2-1975 and 8-2-75 he had signed these slips after checking the same.
59. ' Aurangzeb Shah (P. W. 36), Inspector, C. I. A. Staff, deposed that he was included as member of the Investigation Team in this case. He arrested Ahmad Farooq accused appellant who was required in Case No, 647, P. S. West Cantt., Peshawar, and also in this case on 26-3-1975. He produced him before Muhammad Iqbal, M. I. C., Peshawar, on 27-3-1975 for recording his confession. In cross- examination, he stated that Ahmad Farooq accused appellant was entrusted to him for interrogation in a case of West Cantt., Peshawar, on 20-3-1975 who had already been arrested under rule 32 of the Defence of Pakistan Rules before this date, and it was on 25-3-1975 when his formal arrest in this case was effected. According to this witness, Ahmad Farooq accused appellant was not taken far recording his statement on 21-1-1975, because he was then not disclosing the whole facts. So after interrogating him on 22-3-1975 and thereafter interrogating him almost every day up to 25-3-1975, ultimately the confession was recorded on 27-3-1975.
60. ' Nur Zeman (P. W. 37), Sub-Inspector of police deposed that he was included in the special investigation team appointed for the investigation of this case and that amongst other articles, he took into possession the Registration Book No, 59/1112/18.171 (Exh. P. W. 37/0 pertaining to Car No, K. A.
61. K.
59. The said Registration Book was produced before him by Faqtrzada, Office Clerk of the United Insurance Co., Bank Road, Mardan (vide recovery memo. Bah. 37/A). He also allegedly took camera (Exb. P. W. 19/1) to Lahore and developed ten copies there (Exh. P. W. 16/1, Exh, P. W. 15/4, Exb. P. W.
62. 21/4 and Exh, P. W. 37/2 to Exh. P. W. 37/8.
63. ' Laiqur Rahman (P. W. 38), Sub-Inspector of Police deposed that in his presence Ahmad Farooq appellant produced before Masud Khan Inspector Car No, KAK-59 (Dastun) of red colour (Exh. P. W.
64. 38/1).
65. ' Dr. Major Syed Ahmad All Shah (P. W. 40), Pathologist, C. M. H., Peshawar, deposed that on 8-2-1975 at 16-55 hours late Hayat Muhammad Khan Sherpao had been brought to the operation Theatre of the Hospital in injured condition and he and Dr. Major Muhammad Amin had attended to examine his injuries but no sooner they started attending to him then he expired at 17-00 hours on the same day. According to him, the following injuries were found on the person of the deceased :- "(1) Compound/comminuted fracture upper and lower jaws with missing of soft tissues. Few pieces of splinters were sticking inside the wound.
(2) Fracture left orbital region with protrusion of brain substance.
(3) 11 penetrating wounds of different sizes with charring- of their margins present over front of chest.
(4) Puncture wound over left shoulder and left arm.
(5) Three lacerated wounds in the right inguinal regions, measuring 2' x if", 1" 1/4, respectively.
(6) Multiple penetrating wounds, both legs with charring of theft margins.
(7) Compound/comminuted fracture left leg with pieces of cloth, woods and splinters inside it.
66. ' In all, six metallic pieces were removed from the wounds on different parts of the body. Also removed were burnt up small pieces of recording tape."
67. ' According to him, the death of the deceased was due to shock and haemorrhage as a result of the bomb explosion.
68. ' Dr. Major Muhammad Amin (P. W. 41), Surgical Specialist, confirmed the statement of Dr. Major Syed Ali Shah that they both had conducted autopsy on the dead body of the deceased.
69. ' As stated earlier, Abdul Hamid Khan, President of the Society has also met his death in the incident and others sustained injuries out of whom a good number of persons were not produced.
70. ' Mian Adam Shah (P. W. 46), Sub-Inspector, Crimes Branch, Peshawar, deposed that he was deputed to Karachi for the Collection of reports in respect of the injuries sustained by P. Ws. Rab Nawaz Khan and Miss Almas Begum who had already been admitted to Spencer Eye-Hospital, Karachi. In cross-examination, he denied to have been on duty over the accused appellants at Fort Bala Hissar, he, however, admitted to have written in his own hand Qaseeda Burdas (prayers) (Exh.
71. PDX/1 and Fah. DX/B) on the first and last blank sheets of the Holy Tafheemul Qur'an (Exh. DX/1) saying that he had written the same somewhere else on the demand of a person belonging to Tableeghi Jummat. The defence version in this respect is that while he was on duty over the accused appellants at Fort Bala Hisser, Nisar Muhammad Khan accused appellant had all the volumes of the Holy Tafheemul Qur'an on one of which he had written the aforesaid Qaseeda Burdas.
72. ' Ihsanullah (P. W. 47) deposed that he was a taxi-driver of Car No, SWT244 and that one or two days before the day of occurrence, one Javed son of Azam Khan (not produced) came after him to the Petrol Pump of HO Attaullah asking him that Nisar Muhammad Khan accused appellant had wanted his car. He told him that he could not go at that time and on the following day in the mining, he proceeded to Sheikh Abad (the village of Nisar Muhammad Khan), but on the way he met Nisar Muhammad Khan near Mufti Abad. Nisar Muhammad Khan accused appellant was in his car and two other persons were also sitting with him in the car. One of these persons was his.
73. Munshi and the other was an unrecognized person. According to this witness, Nisar Muhammad Khan accused appellant asked him to follow him in his car to Peshawar. The witness, however, told him that the tyres of his car were weak and that the place where he was required to reach should be shown to him. Nisar Muhammad Khan told him that he should reach Gore Bazar, Peshawar Cantt. He acted accordingly. However, when he reached Gora Bazar at 8-30 a.m., Nisar Muhammad Khan-was not there. After about 10 minutes, Nisar Muhammad Khan accompanied by two persons came and parked his car outside Gore Bazar. He then entered Gora Bazar and after 5 minutes came from there in the company of two other persons. He asked him to be on duty with those two persons, one of whom was wearing suit and the other who was taller in height was wearing shirt, Shalwar and Khaki coat. The man wearing suit had also a red colour bag and a Khaki Lifafa in his hand. He took those two persons to Muhammadi Hospital, Peshawar City. On reaching Muhammadi Hospital both of them entered the hospital and spent two and a half hours there.
74. Thereafter, they came out and asked him to take them to the bungalow of Abdul Wali Khan at Shahi Bagh, Charsadda. On reaching Shahi Bagh, they met Asfandyar Wali accused appellant and stayed with him for about half an hour and thereafter returned back to Peshawar. On their return journey, he put some petrol in the car at the petrol Pump of Haji Attaullah at Charsadda Bazar and from there he also took Hawas Khan, a bus conductor, as it had become Maghrib time and it was raining too and thus he needed his company for the night journey. While reaching Railway Bridge near Fort Bala Hissar, the two persons directed him to take the car to Muhammadi Hospital wherefrom the cousin of one of them was to be taken. From the Muhammadi Hospital, they took a third person along with them in the car and proceeded towards Green Hotel, Peshawar Sadar, where one of them alighted and after five minutes came back to the car. They then proceeded to Peshawar University and on the way the witnesses purchased Pushto Music Records at Arbab Road.
75. On reaching the University, all the persons alighted from the car and they were received there by two persons. After unloading their belongings, the witness along with Hawas Khan came to Peshawar City where they saw a film in a Cinema. The witness was shown photographs (Exh. P. W.
76. 23/1 and Exh. P. W. 23/2) in Court and he recognized that the said photographs were of the same persons who were with him in the car in the above journey. He also identified the coat (Exh. P. W.
77. 18/3) allegedly worn by Anwar Bacha absconding accused and the coat (Exh. P. W. 18/4) allegedly worn by Amjad All absconding accused. In cross-examination, he admitted to have been arrested after 12/13 days of the occurrence and after 12/13 days of his arrest his statement was recorded. He also admitted that he had been telling the police that he knew nothing and ultimately he was produced before a Magistrate who recorded his statement under section 164, Cr_ P. C. He also admitted that since his arrest until his appearance before the trial Court on 16-6-1975, he had been in police custody throughout. It is worthwhile to note here that when he was asked about the time, he said that he had no watch with him when he was giving his statement. He, however, had a watch on his hand while giving his statement under section 342, Cr. P. C. Before the trial Court, and when asked as to how was it that he had a watch then, he replied that the watch belonged to his friend who had given it to him for repairing, as it had developed some defects.
78. ' Nasir Ahmad (P. W. 48) deposed that he was a Munshi at the petrol Pump of Haji Attaullah at Charsadda and that P. W. Ihsanullah got his permission to allow Hawas Khan to accompany him, as he was taking two guests to Peshawar. He further stated that about 16/17 days after the occurrence, one Tariq son of Azam came to his petrol pump and told him that Ihsanullah should go in hiding as instructed by Nisar Muhammad Khan accused appellant.
79. ' Qazi Muhammad Yousaf (P. W. 49), Magistrate, deposed that be had supervised the identification parade relating to Car No, KAK-59 and P. W. Amanullah had picked the said car. On 29-3-1975, he had also supervised the identification parade of Ahmed Farooq accused appellant and the said ,Amanullah had identified him in Peshawar Jail.
80. ' Musharraf Shah (P. W. 50), D. S. P., Charsadda, deposed that on 13-3-1975 he, Tamash Khan S. P, and Niaz Gui S. P. Had taken along with them Abdul Wakil Shah M. I. C., Charsadda, to village Chamyaran, where from the Hujra of Ghazi Amanullah they had recovered arms and ammunitions (Exhs. P. W. 50/1 to 50/7) consisting of stenguns etc., vide recovery memo. (Exh. P. W. 50/A) prepared by the aforesaid Magistrate.
81. ' Murad Khan (P. W. 51), F. C. No, 247 Special Branch, Peshawar, deposed that he had been posted on special duty at the bungalow of Abdul Walt Khan at Shahi Bagh in order to note the visitors to the said bungalow in the daily diary. According to that diary pertaining to 8-2-1975 (Exh. P. W. 51/1) regarding the visits and departures of the persons to the bungalow, Abdul Ghaffar Khan is recorded to be away at Peshawar while Abdul Wall Khan is shown to be away on tour to Punjab. In this diary, it is also noted that in Car No, AJK-6301 four unknown persons had come to the bungalow of Abdul Wali Khan at 11 a.m. And Asfandyar Wali accused appellant had met them and thereafter the said persons had gone back at 12-15 p.m. In crossexamination, he admitted that he had been residing in the accommodation provided to him by Nisar Muhammad Khan accused appellant.
82. ' Amanullah Khan (P. W. 52) deposed that he was employed in the Cable Wire Factory of Nisar Muhammad Khan about Zuhur time on the same day or a day earlier when Hayat Muhammad Khan Sherpao was murdered, that two persons had come to the said Factory in Rikshaw out of whom he had already seen one with Nisar Muhammad Khan accused appellant on a previous occasion. Photographs (Exh. P. W. 23/1 and Exh. P. W. 23/2) were shown to him in the trial Court which, according to him, were the photos of the said two persons who had previously come to the Factory.
83. ' Nawab Khan (P. W. 53) deposed that he was a driver of private taxi car in Peshawar City. On the day on which late Hayat Muhammad Khan Sherpao was murdered, two college boys had come to the Adda at 9/10 a.m. And asked him to take them in his taxi car to Charsadda. After settling the hire money, the two boys were taken to the Muhammadi Hospital Peshawar City, as desired by them. On reaching the hospital, a young man was standing in the gate (Pointing to Ahmad Farooq accused appellant in Court). One of the two boys who was addressed as Amjad proceeded to Ahmad Farooq accused appellant and whispered in his ear and thereafter got him seated in the car. They then proceeded to Shahi Bagh via Utmanzai Road. While reaching the bungalow of Abdul Wali Khan at Shahi Bagh, they met Asfandyar Wali accused appellant, and thereafter while getting leave from Asfandyar Wali, Amjad absconding accused had a tape-recorder and some gramophone records with him tied in a handkerchief. After the three were brought in the said car to Peshawar via Sardheri-Charsadda Road. While reaching the Government College near Faqir Abad, Peshawar City, all the three young men alighted from the car and the hire money was paid to him.
84. He further deposed that on the very day at about 5 p.m., the two boys Amjad Ali and Anwar Bacha absconding accused again came to the said Taxi Stand and hurriedly hired another taxi car No, LR- 4835 driven by Rahim Shah and that either Amjad Ali or Anwar Bacha threw gramophone records towards the space behind the back seat of the car. They then proceeded to Charsadda in the car, but after 14 minutes Rahim Shah driver came back to the said Adda telling him that he left the two boys near Bakbshu Bridge, as he refused to drive the car faster on account of the fact that it was raining and he was afraid of his car making skid. In cross examination, he totally denied to have identified any one of the accused in identification parade held at Bala Hissar Fort and further stated that he bad placed his hand on some other person because that person had the resemblance of Ahmad Farooq accused appellant.
85. ' Abdul Wakil Shah (P. W. 54) deposed that during the days of occurrence he was posted as M. I. C., Charsadda. He had accompanied D. S. P., Charsadda, Tamash Khan A. I. G. And Niaz Gul S. P. To village Chamyaran where from the i-lujra of Ghazi Amanullati Khan (not produced), the arms and ammunitions, as mentioned by P. W. Musharraf Shah in his statement before the Court, were recovered by the aforesaid police officer in his presence.
86. ' Rahim Shah (P. W. 55) deposed that he was a taxi driver of Car No, LR-4835 (Cheverolet Model).
87. On the day of occurrence at about 4-30 or 5 p.m., two young college boys had engaged his taxi car for Charsadda. While they were proceeding in the car to Charsadda, the two young boys insisted to drive the car faster, but he declined to do so, as it was raining with the result that the two young boys were dropped near Bakhshu Bridge and he came back to the Adda where he narrated the story to P. W. Nawab Khan who stated that previously those young men were also his passengers.
88. The photographs (Exh. P. W. 23/1 and Exh. P. W. 23/2) were shown to him which, according to him were the photos of the same persons who had gone with him upto Bakhshu Bridge in his car. He further stated that these photographs had earlier been shown to him by the Investigating Officer at the time when his statement was being recorded.
89. ' Abdur Rahman (P. W. 56), F. C. No, 41 deposed that he was working at Urdu Shorthand Writer in the Inform tion Centre of the Special Branch Police at Peshawar. On 14-11-1974, he had recorded the speech of Nisar Muhammad Khan accused appellant made by him at a public meeting at Chowk Yadgar. He testified Exh, P. W. 56/A to be the true copy of the said speech which he had correctly recorded verbatim.
90. ' Ghulam Qadir (P. W. 57) was the Munshi of Nisar Muhammad Khan accused appellant. He deposed that he was managing and keeping the accounts of Nisar Muhammad Khan also dealing with his tenants and was also attending his civil and revenue cases in Courts. It may be mentioned that in the trial Court he was declared hostile, as according to the prosecution, he went back on his statement recorded under section 164, Cr. P. C. With which he was confronted and he totally disowned the same saying that he never made any such statement before any Magistrate. He rather said that the said statement was extracted from him through violence and the police had penetrated stick in his anus.
91. ' Madad Khan (P. W. 58), S. I., Special Branch, Police, Charsadda, produced the record of political diaries showing the speeches of Nisar Muhammad Khan accused appellant against the Government.
92. ' Muhammad Sabir Khan (P. W. 59), S. I., Special Branch, Police, Mardan, produced the record maintained in Mardan pertaining to the activities of absconding accused Anwar Bache, Sher Zeman, Shahbaz and Mumtaz as associated with Pakhtoon Zalmai Organization. He deposed that absconding accused Amjad Ali, a student of the University, remained away from his home.
93. Therefore, no record in regard to him could be produced. In cross-examination, he stated that he did not produce any list before the Investigating Officer in which the name of Ahmad Farooq accused appellant is mentioned.
94. ' Muzaffar Shah (P. W. 60), Proprietor, And Radios Service, Sadder Road, Peshawar Cantt. Was shown the tape-recorder (Exh. P. W. 10/1) National, made in Japan. He stated that if the amplifier is removed from the interior of the body of the tape-recorder, it could still function. According to him, in case of removal of the amplifier, vacuum of in thickness, 5' or 5 in length and about 4' in width might be created. Ho further stated that the motor area of that tape-recorder would work even if the amplifier is removed.
95. ' Shabzada Khan (P. W. 61) deposed that he was a private servant of Abdul Wall Khan. He was also declared hostile by the Pubic Prosecutor and was confronted with his statement Exh. P. W. 61/A) which he disowned and stated that he never made any statement before any Magistrate. In this connection, a note is affixed by the trial Court to the effect that "the witness who is in custody in another case was brought to Court in handcuffs and his handcuffs were removed before he was put in the witness-box. In the course of his narration of what happened to him at Warsak and of police treatment with him, in which he was questioned in cross-examination, tears came to the eyes of the witness and his voice also became choked".
96. ' Muhammad Naeem Khan (P. W. 62), M. I. C., Peshawar, deposed that on 27-3-1975, he had recorded the confessional statement of Nisar Muhammad Khan accused appellant and on the application (Exh. P. W. 62/C) marked to him by the S. D. M., Peshawar, he had, on 1-3-1975, also supervised the identification parade in which a bag and two coats were identified by P. W.
97. Ihsanullah and Hawes Khan (not produced).
98. ' Muhammad Iqbal Khan (P. W. 63), M. I. C., Peshawar, deposed that he had, on 16-4-1975, conducted identification parade at Fort Bala Hisser In which Muhammad Sadiq Ijaz Steward of Teacher Student Centre, Peshawar University, had identified Ahmed Farooq accused appellant.
99. Pursuant to the application marked to him by the S. D. M., Peshawar, he recorded the confessional statement of Ahmed Farooq accused appellant on 27-3-1975. Likewise, he had on 27.3-1975 also recorded the confessional statement of Asfandyar Wall accused appellant on an application (Exh.
100. P. W. 63/D) marked to him by the S. D. M., Peshawar.
101. ' Syed Umar Shah (P. W. 64), S. I. Deposed that during the days of occurrence, he was posted as S. H.
102. 0., Tehkal the territorial jurisdiction of which is extended to the place of occurrence. On learning about the occurrence, he went to the spot where he recorded the report of occurrence at the instance of P. W. Faqir Muhammad Khan in the form of a Morasila (Exh. P. A/1) and thereafter sent the same to Police Station, Tehkal, for the registration of the case. He then prepared site-plan (Exh.
103. P. W-64/A) at the instance of the said Faqir Muhammad Khan with ail its notes given therein except the entries in red ink which were made by S. P. Mien AjmirShah on 1-4-1975. The attached note (Bah.
104. P. W-64/B) dated 1.4-1975 is in the hand of S. P. Mian Ajmir Shah. In cross-examination, he admitted to have been told by P. W. Faqir Muhammad Khan that he had seen a tape-recorder of Radio Pakistan and he had no mentioned any other tape-recorder to him. He had also not shown him the place in the site-plan where the tape-recorder of Radio Pakistan was lying at the time o?
105. Occurrence in the Hall. He further admitted that Tariq A. S. P. Was attached to late Hayat Muhammad Sherpao as Special Security Officer and he had not recorded the statement of Tarlq A. S. P. Under section 161, Cr. P. C. (Note.-In fact, the tatement of Tariq A. S. P. Had been recorded under section 161, Cr. P. C. By the Police on 12-2-1975).
106. ' Major Mehr Zaman Khan (P. W. 65), Ammunition Technical Officer (Army), Logistic Area, Sargodha, deposed that during the days of occurrence, he was posted at Peshawar. On 9-2-1975 at 9 a.m., he was contacted by Shah Nazar Khan and Mian Ajmir Shah S. Ps. To examine the splinters and the site in the Assembly Hall of Political Science Department, Peshawar University, where on the previous evening a bomb had exploded which caused the death of Hayat Muhammad Khan Sherpao and injuries to others; He prepared detailed reports in respect of the various articles and the site-plan (Exh. P. W. 65/A, Exh. P. W. 65/B, Exh. P. W. 65/C).
107. ' Mian Ajmir Shah (P. W. 66), Assistant Director, Intelligence Bureau, Hazara Circle, deposed that during the days of occurrence, he remained posted as S. (Rules), Peshawar. He was directed by the I. G., Police, Peshawar, to investigate the case and hence he took over the investigation of the case from Seed Umar Shah S. H.
108. 0., P. S. Tehkal.
109. ' Masud Khan (P. W. 67), Inspector, Police deposed that he was associated with the investigation of the case as member of the Investigation Team, and took into possession various articles (as mentioned in his statement before the Court) through recovery memos and also recorded the statements of the witnesses.
110. ' At the conclusion of the trial, the three accused appellants were questioned about their involvement in the crime and they replied that they are innocent, and have been falsely charged.
111. ' Following is the retracted confessional statement of Nisar Mohammad appellant "On 5-2-1975 I was informed by one of my servants in my village that Begum Wali Khan had sent for me. As it was too late on that day, I visited Shahi Bagh on the following day Le. 6-2-1975. There, Begum Wall Khan asked me to contact Abdul All Khan the then Vice Chancellor Peshawar University in connection with the admission of one Anwar Bacha to the Fine Arts Department I was told by her that Anwar Bacha is the nephew of Senator Shahzad Gul Bacha of the N. A. P. I promised to do the same as I had other private engage' ments in Peshawar City on that day. As I came out of the House of Abdul Wali Khan, Asfand Yar met me in the reception room there. He disclosed to me that the story regarding admission of Anwar Bacha was a false one and that actually the said Anwar Bacha had plans to finish the life of Mr. Hayat Khan Sherpao. He also asked me that I should provide my car to the said Anwar Bacha for executing his plans. Before leaving the house of Abdul Wall Khan, Begum Wali Khan bad also given me a bag containing 15 to 20 cartridges and probably a charger or a 'Panj' with the direction to deliver it to Anwar Bacha, who had according to Begum Wali Khan left it at their house. Thereafter I came to Peshawar and met two boys in front of Jan's Hotel. They introduced themselves to me as Anwar Bacha and Amjad. I took them in my car to my Cable Factory near Sabrina Cinema. My Munshi Ghulam Qadir was also with me in my car. At the factory premises Anwar Bacha and Amjad insisted that I should lend them my car to execute their plans to finish the life of Hayat Muhammad Khan and others. They showed no interest in seeking admission to the Peshawar University. I acceded to their demand for a car and accordingly arranged a Taxi car for them on the following day. The car was made available to them on 7-2-1975 near `Gore Bazar' Peshawar Cantt. At about 9 a.m. Thereafter I went to Mir Ahmad Gul Kalai and had lunch with Shah Jehan my cousin and then went to Gul Abad to see my brother Mir Alam Khan. I had my afternoon tea with my brother Mir Alam Khan,. At about 4 or 4-30 p.m. On my way from Gul Abel to Sheikh Abad I noticed the said Taxi Car parked in the hujra of Abdul Wali Khan at Shahi Bagh. So I also turned towards Shahi Bagh to enquire' about as to how that Car had reached there. I went straight into the house of Abdul Wali Khan. Begum Abdul Wali Khan told ma that Anwar Bacha had come back and she also asked me about the admission of Anwar Bacha. I replied to her that Anwar Bacha had shown no interest in seeking admission and had rather stressed upon me to provide him with a car for their election campaign. I told her that I had accordingly arranged the car for them. Coming back from Begum Wall Khan, I again met Anwar Bacha avid Amjad in the reception room of the house of Wali Khan. They informed me that they had failed to execute their plans to murder Hayat Khan on that day at the Polly Technic Institute Peshawar, as, according to them, Mr. Afrassayab Khattak had also occupied a chair on the stage with Hayat Khan Sher Pao in that function. Thereafter, I left for my village, directing Ihsanullah driver of the said Taxi car at Shahi Bagh to take the two boys wherever they wanted and to finish the duty with them on that day. On 8-2-1975 I attended a meeting of the Itihad Party at Mardan at about 10 a.m. And after taking lunch with Ikramullah Khan at Mardan, I proceeded to Peshawar in connection with my other private businesses. At about 5 p.m. I left Peshawar for my village. After offering my evening prayer (Maghrib Prayer) at my village, one of my servants informed me that I had been sent for by Begum Wali Khan. So I went to Shahi Bagh where - Begum Wali Khan asked me if I had heard the "news".
112. She then apprised me of the bomb blast that had taken place in the University that evening. She was much worried about Wall Khan who was then on a tour to Punjab. I consoled her and told her that things would take its own course and that she should not worry about her husband. While I was busy talking to Begum Wali Khan, her son. Asfandyar also came there. He accompanied me while coming out of their house and at the reception room, he asked me to shift the weapons including two rifles, two stenguns and three pistols from their house as he apprehended police raid on their house, and as he was not sure whether his father, who is a leader of the opposition, was entitled as such to keep unlicenced weapons. Accordingly I took these weapons and placed it in custody of my cousin Ghazi Amanullah Khan of Chamyaran.
113. ' At about four or five days after that occurrence after having my dinner with my cousin at village Chamyaran when I reached my own village Sheikh Abad, one of my servants told me that two guests were staying in my room at my hujra and that they had been brought by Hablbullah alias Bula Khan of Burj Kali. I went straight to that room where I found Anwar Bacha and Amjad in intoxicated condition. I advised them to go to sleep, The following day while I sat on our breakfast table in my hujra, Amjad and Anwar Bacha told me that they had been responsible for the bomb blast at Peshawar University which had taken the life of Hayat Khan Sherpao. They further stated that from the scene of occurrence they had fled away in tongas and rickshaws and reaching at Charsadda they had been apprehended by police under 13 Arms Ordinance whereafter they remained in judicial lock up for four or five days and were then got released on bail by Bula Khan.
114. They further requested me to arrange conveyance for them upto Peshawar. I wanted to take them to Peshawar in my car but meanwhile a servant informed me that the driver of my brother Mir Alam Khan had been arrested by police. So I decided to proceed to Gul Abed to enquire about the arrest of my brother's driver. So I asked my cousin Ghazi Amanullah Khan to take the two boys to Peshawar which he did accordingly. I knew that Ghazi Amanullah Khan would go to Peshawar that morning as already discussed with him at the dinner on the previous day."
115. ' At the trial Nisar Muhammad Khan accused appellant made the following statement :- "I have been falsely involved in this case, because of my differences with the Prime Minister of Pakistan. The differences arose when after the last general election of 1970 Mr. Zulfikar All Bhutto, went to East Pakistan and after having a talk with Sheikh Mujibur Rehman, he came back. He then came to Peshawar and desired that he would like to talk to all the heads of various Political Organizations in N.-W. F. P. He wanted to boycott the session of the Constituent Assembly, because according to him, Sheikh Mujibur Rehman, was bent upon separating East Pakistan from the Western Wing and he Le. Mr. Bhutto wanted that all the political parties of West Pakistan should agree on boycotting the session of the Constitutent Assembly, scheduled to be held in Dacea. I disagreed with Mr. Bhutto on the question of boy-cott. I told Mr. Bhutto, that if the Assembly sessions was boycotted it would rather encourage and strengthen Sheikh Mujibur Rehman in his designs to separate East Pakistan as he could then tell the Bengalis that the Western Wing was not prepared to hand over the power to them by accepting their majority. The next time, I again differed from Mr. Bhutto when the question of recognition of Bangala Desh came under consideration. Mr. Bhutto having come to know about my views, then did not summon me to any meeting of the P. P. P. Since I was not being summoned to such meetings, therefore, with a view to give vent to my views and to acquaint the public and in particular my own party men, I started giving my views to the press which were being published in the newspapers. It was on that account that first I received the show-cause notice mentioned above and ultimately I was expelled from the P. P. P. I was not the only one, but several other founder members of the P. P. P. Were also expelled from the party and not only expelled but they were jailed and insulted and shot at. Miraj Muhammad Khan and Mukhtar Rana are examples of the same. Now Mr. J. A. Rahim has been expelled. He was fired upon and also beaten. Ahmed Rasa Qasuri, M. N. A. Is, another person to be quoted. The latest victim is Mr. Khurshid Hassan Meer. Mr. Mahmood All Qasuri was also an active member of the P. P. P. And so was his son and they have been expelled from the party. Now several M. N. As. Of P. P. P. Have received show-cause notices as to why they should not be expelled from the party. Besides that in a meeting, I told Mr. Zulfiqar All Bhutto that there was no need to have the landlords and the tenants clash with each other, I mean land owners, and it would have been better if an Ordinance had been promulgated finishing altogether private ownership. It is for these reasons, as also because the next general elections are coming near, that I have been involved In this case falsely, as I may contest next election. In the last bye-election of a Charsadda constituency, I supported Sher Dl Khan as the U. D. F. Candidate, against Nadir Khsn a P. P. P.
116. Candidate and that election was won by Sherdil Khan. With a view to falsely implicate me in the occurrence, I have been connected with the family of Abdul Wali Khan although I had opposed him in the last general elections as a P. P. P. Candidate. Moreover, some members of my family had been contesting elections against the relatives of Abdul Wali Khan. Sher Afzal Khan, my uncle had contested election against Saadulllah Khan a cousin of Abdul Wali Khan. Apart from that, it has already come on record in evidence that the Foot Constable of Special police, namely, Murad Khan P. W. Who had been appointed to keep a watch over the activities of Abdul Wall Khan and his family members, was accomodated by me for years, upto the date of my arrest in a house, provided by me and I was also giving him food all along. Asfand Yar Wali accused belongs to a different family known as Khawaji Khell, while I belong to Pareech Khel family. These two families are rival families, always being in dispute with each other, since our fore-fathers. In these circumstances, it could not be possible for me to enter into a conspiracy with Asfand Yar Wali accused. The rest of the accused are not even known to me and I did not know them even by face."
117. ' Explaining the confessional statement Nisar Muhammad Khan accusedppellant made the following statement :- "I did not make any voluntary confession. On 23-2-1975, I was sitting in my hufra in Sheikh Abad when in the evening S. H.
118. 0., Khanmai Police Station and S. H.
119. 0., Charsadda Police Station, came to my hujra and they told me that I was required by D. S. P., Charsadda (P. W. Musharaf Shah Khan), who was waiting in village Sar Dheri. I then went with the aforesaid two Police officers there and then to village Sar Dheri. P. W. Musharaf Shah Khan D . S. P., told me that I was required by S. S. P., Peshawar and then he took me along-with him to Peshawar where I was taken to East Cantt. Peshawar Police Station. The D. S. P. (P. W. Musharaf Shah Khan) then went away and I was not taken to the S. S. P. About half an hour later, I was put in the lock. On 24-2-1975, I was taken to Warsak Interrogation Centre. In Warsak and even before that none had told me as to why I was arrested. In the Warsak Interrogation Centre, P. W. S. Aurangzeb Shah Inspector, Fazel Hussain S. I. And Hassan Gul A. S. I., were present, besides some Foot constables. In Warsak Interrogation Centre, the said Police Officer used to constantly enquire from me as to why I was not going to patch up my differences with Mr. Bhutto (Prime Minister) and they did not allow me to sleep. I was kept in Warsak Interrogation cell up to 1-3.1975 and all along, the sad Police officers/officials had been enquiring from me about the said matter and would not allow me to sleep. On 1-3-1975 S. Auranezeb Shah Inspector (P. W.) brought me from Warsak to the office of S. P., Crimes, but I was not allowed to alight from the closed police van. I remained in the van for about three hours whereafter 1 was again taken to Warsak. In Warsak Interrogation Centre, P. W. S. Aurangzeb Shah came to me and told me that on my account S. P. Shah Nazar Khan and S. I. Fazli Hussain, have been demoted and transferred and that they (i,e, S. Aurangzeb Shah Inspector (P.
120. W.) etc. Would also meet the same fate, unless I agreed to accept the version which will be brought by some high officers to Warsak and that I should accept that story. He also warned me that if I did not accept that story, then they would do with me the same thing which they have been doing with others. I enquired from P. W. S. Aurangzeb Shah inspector as to what the story was and what I was required to accept, but he told me that officers are coming to Warsak who will tell me what I was to accept. In the evening on that very day i,e, on 1-3-1975, Niaz Gul S. P., Tamash Khan S. P. And Muhammad Akram Khan D. S. P. Came to Warsak. They told me that they had arrested my servants and that I was required to sign the confession memo ; which they had brought alongwith them, but I refused to sign the same. Then the said police party left and after about half an hour P. W. S. Aurangzeb Shah Inspector again came to me and he made me site on a chair. My hands were tied with a cot, lying nearby and he started pricking pins into my fingers. I was not allowed to sleep and whenever I felt sleepy, they would throw cold water on my face and other body, to awaken me. It was biting cold. Next P. W. Aurangzeb Shah Inspector took off my pull over, shirt, and banyan and constantly continued to throw cold water on me, I was only allowed to offer my prayers, and to take food. From 8th March, 1975 to 12-3-1975, I was not even allowed to offer prayers. On 12-3-1975 in the morning, I was released from that stage and while still in handcuffs, I wanted to walk, but I could not do so, and I fell down. 1 was then made to lie on a cot by Aurangzeb Shah. After about 2 or 2i hours, I was served with tea and then I was brought from Warsak to the office of S. P., Crimes in Peshawar. Then I was taken to the Court of Mr. Shaukat Ali Khan Magistrate. As I knew that Magistrate, he greeted me and asked me as to how I was on which I informed him about what the police had been doing wit me. I was taken inside the Court of the Magistrate on that day by Akhtar All S. I. Mr. Shaukat Ali Khan Magistrate, then told Akhta All S. I. That I should be taken to the police Van where-after he i.e Akhtar Ali S. I. Should come back to him (the said Magistrate) After a while S. I. Akhtar Ali came and then I was taken back to the office to Tamash Khan S. P., but I was kept in the Van and was no taken inside the office of the said S. P. Thereafter I was again take back to Warsak.
121. After a while Niaz Gul S. P. Came to Warsa He asked me to check up my effects, as I was going to be shifte from Warsak. Then at Khuftan time, I was brought to Fort Bal Hissar. When I reached Fort Bala Hissar, I found Tamash Kha S. P. And sufficient number of other police officers/officiats, present over there. From 1-3-1975 rather after 1-3-1975, Amanullah Kha D. S. P. And Akhtar Ali S. I., had come to Warsak and both of the and S. P., Aurangzeb Shah Inspector (P. W.) went with me fro Warsak on the night of 12-3-1975 to the Fort Bala Hissar. I w then put in a cell and I was then served with the detention ord Exh. D. YYY. Tamash Khan then told me that he was going an that the police officers who had come with me from Warsak, aforesaid, and some other officers including P. W. Mian Adam Shah would stay with me and that he i,e, Tamash Khan S. P. Would see me on the following day. On 13-3-1975 Tamash Khan S. P. Again came to see me in Fort Bala Hisar. He told me that Asfand Yar Wali accused was also in another cell in that Fort and that i,e, Tamash Khan would like to make enquiry from us jointly and that it would be in our interest if we admit what he wanted to tell us.
122. Then Aurangzeb Shah Inspector (P. W.) took me to the cell of Asfand Yar Wall accused. There I found Asfand Yar Wali lying and he was unable to get up, while Tamash Khan S. P. Was standing in his cell. There Tamash Khan S. P. Told us that they would be obliged to bring our females, unless we admitted that we had conspiracy with Amjad and Anwar absconders and had helped them to murder the late Mr. Sherpao. I told Tamash Khan S. P. That he should give us some time to think over because I knew nothing and it was very unfair to me. On this, Tamash Khan S. P. Told us that he would give us only 24 hours. On 14-3-1975, Amanullah Khan Gandapur D. S. P., asked me as to whether I was going to admit the guilt, but I told him that I have no knowledge of the occurrence, nor I am in any way involved in the same, then why should I make confession. After 14-3-1975 then the police stopped giving me meals and tea and Amanullah Khan Gandapur D. S. P., P. W. Mian Adam S. I., Akhtar All S. And P. W. Aurangzeb Shah Inspector used to keep on sitting with me turn by turn and talking to me and thus they would not allow me to go to sleep. I requested them to allow me to have the "Tafheem-ulQuran" which was lying in my box so that I may read the same, but they refused to oblige me. Then they took my watch from me with a view that I should not even know the timings. After a few days, Tamash Khan S. P. And Niaz Gul S. P. Came to me. Till then I was denied food and tea. Tamash Khan S P. Told me that he was leaving behind Niaz Gul, S. P. For talk with me as Niaz Gul had earlier remained posted as D. S. P. Charsadda and he would have further talks with me. Niaz Gill S. P., then asked P. W. Mian Adam Shah S. J. To bring the 1st Volume of "Tafheem-ul-Quran" for me. Niaa Gul S. P. Then turned out Mian Adam Shah (P. W.) of the room
(Cell) and then he i,e, Niaz Gui S. P., placed his hands on that volume I of "Tafheem-ul-Quran" and swore that they having exhausted all means, to persuade me to agree to confess the guilt, were obliged to bring my wife and other females to me and not only that, but that they would disgrace them in my presence. He also warned me that even if that method did not bear fruit, I would die in the cell. I told Niaz Gul S. P. That since he had taken oath on the Holy Book and our honour was involved, therefore, with a view to save my honour and the honour of my family I told him that I was prepared to admit anything what they would ask me to do. He then sent for Akhtar Ali S. I. And left him with me and Niaz Gul S. P. Then went away saying that he would come back. After five minutes lie came back, and asked Akhtar Ali, S. I. To take me to the room of Asfand Yar Wall accused.
123. Tamash Khan was present there. He asked Akhtar All to go out of the room and he (1 e.) Tamash Khan S. P. Then told me that whatever I had stated before Niaz Gul, S. P., I should inform Asfand Yar Wali accused about what had earlier happened between me and Niaa Gul, S. P. Asfand Yar Wali accused then agreed with me saying that instead of having our female members humiliated and disgraced, it would be preferable, to agree what the police wanted us to do so. Thereafter, I was brought back to my own cell. Then the Jail authorities started giving me food and tea and they asked me that I could henceforth read the "Tafheemul Qur'an". Volume I cf the same which is Exh.
124. DX/1 was then given to me for reading. After some time, but on the same day Tamash Khan S. P., again came to me and he asked Mian Adam Shah P. W. To go out of the room. Tamash Khan then told me that we had taken the correct decision and further that we had saved them from further botheration as henceforth they would be relieved of further trouble. He also said on oath that nothing would come out of our admission. Then Tamash Khan S. P., went away and thereafter P. W.
125. Mian Adam Shah S. I. Came back to me and told me that he had arranged tea for me and that 1 should relax and he then wrote some prayer (Wazeefa), on the first page (Exh. DX/A) and last page (Exh. DX/B) of EA. 1 and asked me to read these prayers. As earlier stated, the "Tafheemul Qur'an"
126. ("ia six volumes) was already lying in my box. The remaining five volumes have now been given to me in District Jail Abbottabad, which I produce to be placed on record. These are Exhs. DX/2 to DX/6 and this completes the whole set I used to carry all volumes in my box and when I was taken to Waisak after a few days the same box was sent to me and it taken alongwith me to. Fort Bala Hisar although it remained in the custody of the jail authorities. That box has been brought to Abbottabad Jail and is still in the custody of the Jail authorities and I was given my clothes from that box by the Jail authorities whenever I needed any. Here in jail the clothes which 1 required, are given to me by the jail authorities from the said box, which is presently in the custody of the jail authorities I was also given back my watch in Fort Bala Hisar after I agreed. On 27-3-1975 Niaz Gul S. P. Came to my cell in the morning. He had a prepared statement duly typed. He told me that he would dictate the subject matter of that statement which I should write with my own hand and then sign the same. I told him that he should better give me the dictation in Urdu, which he did and I went on writing the same and that statement was then signed by me. He told me that I should put the date of 7-3-1975 on the same, which I did. Thereafter I was taken in a police van by Amanullah Khan Gandapur D. S. P. And Akhtar Ali S. I. To the Courts where I was taken to a very small room.
127. When I entered that room I found Niaz Gul S. P. And P. W. Mohammad Naeem Khan, Magistrate 1st Class Peshawar whom I now recognized in Court as Magistrate already standing over there. Then the said Magistrate sent for his Stenotypist and the Type-writing machine to the said small room where P. W. Muhammad Naeem Kban Magistrate dictated the subject matter of as already prepared typed statement which was given to him by Nitta Gul S. P. The statement which was dictated by P. W. Muhammad Naeem Kban Magistrate 1st Class to his Steno-typist in that small come as stated above, is Exh. P. W. 62/B on which my signature was taken. Then I was taken bank to Fort Pala Hisser. In fact, the said Magistrate never took my statement nor I made any statement before him, nor he had put any question to me."
128. ' Nisar Mohammad Khan examined Qasim Jan in defence whose evidence net of importance in the context of the succeeding discussion.
129. ' The retracted confessional statement of Asfand Yar Wall is as follows :- "I remained in police custody for six days. I was a student of Peshawar University when I joined Pakhtoon Students Federation in 1971 and was elected Vice-President of the Students' Union. I was appointed as commander for subversive activities by Ajmal Khan Khattak in 1974. It was October 1974 when I alongwith Sher Zaman of Bachai was going in my jeep to Peshawar. Sher Zaman told me that he has received a message from Ajmal Khan Khattak to kill Hayat Khan and that it should be given priority over all other activities. He further told me that he was engaged even for the purpose. We met Nisar Khan near Sheikh Killi on the road when he was coming from Peshawar. I stopped him awl asked him to wait for us in his village as we had some important talks with him.
130. On our return from Peshawar at Khuftan time we went to the house of Nisar Khan in his village. I told Nisar Khan about the plan and asked him to guide us from Sherpao village to the house of Sherpao because we wanted to do explosion in the house of Hayat Khan at Sherpao. Nisar Khan did not agree to the causing of explosion but suggested the murder of Hayat Khan because we did not agree to that former suggestion. We came back. He agreed to help us in any way.
131. ' I was introduced to Anwar Bacha nephew of Shahzad Gul Senator for the first time in my village Shahi Bagh in December 1974. On 5-2-75 Anwar Bacha came to Shahi Bagh. My mother became inquisitive about the frequent visit of Anwar Bacha and told her that Anwar Bacha wanted admission in the Fine Arts Department of Peshawar University and requested her to arrange for his admission through Nisar Khan. I suggested that Nisar Khan should make Safarash to Abdul All Khan because our own relations with Abdul All Khan Vice Chanceller were not good. I suggested that Nisar should meet Anwar the following day at about 4 p.m. Near Jan's Hotel. Anwar Bacha told me that he and Amjad according to the instructions of Sherzaman were going to blast Hayat Khan on 7-2-1975 in a students function in Polytechnique Institute. Anwar Bacha then left the place. My mother sent for Nisar Khan on 5-2-1975 but he came the following morning. She asked him to arrange for the admission of Anwar Bacha to which he promised that I would do the needful when he came out of the house. I took him out of the house. I took him to a side and told him about the plan and told him that story of Admission was a cover story. I told him that Anwar would meet him near Jan's Hotel. Sherzaman was also present with me. Sherzaman again visited on 7-2-1975 in the morning. It was about 4 p.m. When Anwar and Amjad came to my house in a Taxi-car and told me in presence of Sherzaman that they could not succeed in their mission because Afrasiab Khattak was sitting in the function by the side of Sherpao Khan. They left the recorder with Sherzaman which was fitted with explosive by Sherzaman on 8-2-1975 at about 9 a.m. Amjad and Anwar again visited Shahi Bagh and told Sherzaman that Hayat Khan will attend a student function in the History Department of Peshawar University and that they intend to blow him up. They asked for the tape- recorder which was given to them by Sherzaman. It was a National Japani with black colour, They went from there after some time. In the evening I heard about the murder of Hayat Khan through the T. V. N-ws."
132. ' Asfand Yar Wali made the following statement before the trial Court :- "I did not make any voluntary confession before any Magistrate, on 27-3-1975. The memo Exh. P. W.
133. 63/E does bear my signature, but the same were taken from me by force under the circumstances which I will explain later in this statement. Again said I am explaining the circumstance under which my signatures were taken on Exh. P. W. 63/E, right now. I was arrested on the night between 8-9- 1975 from my house in Shabi Bagh. My arrest was effected at about 4 or 4.30 a.m. On 9-2-1975. The police party which arrested me consisted of Sher Taj Khan Additional S. P., Peshawar. Musharaf Shah Khan, D. S. P. Charsadda and about one hundred other police men and Federal Security Service men. I asked Musbaraf Shah Khan D. S. P., Charsadda, if he had any warrant of arrest.
134. Musharraf Shah D. S. P. Told me that he had no warrant of arrest but in pursuance of the murder of Mr. Muhammad Hayat Khan Sherpao, there were general arrests and in that connection, I was also being arrested. I asked them if I could see my family members for the last time and also if I could take my clothes and bedding, which request of mine was refused. I was then arrested alongwith my 3/4 servants and we were taken to P. S. Khanmai. Later at about 11 a.m. On the same day Le, on 9-2-1975 I was brought to Charsadda from Khanmai, not by the local police but by the Federal Security force men. I was kept in Charsadda Police Station lock-up and after 24 hours of my arrest, I asked S. H.
0. P. S. Charsadda that I should be produced before the Magistrate but he replied that he would take me to Warsak to the Magistrate. I remained in Charsadda Police Station lock up till 12-2-1975 and then I was taken on that date to Warsak. As soon as I reached Warsak, I was put in the lock-up and then the Police placed 4 bricks in such a manner that one brick was placed on top of the other brick and the other brick was placed alongwith those bricks over the top of which one other brick was placed and on that platform I was made to stand, till 9-30 a.m. Of the following day.
135. ' I was then taken to a room by S. I. Akhtar Ali P. W. Aurangzeb Shah Inspector and Hassan Gul A. S. I.
136. Were already present there. My hand which had handcuff, was tied to an arm of the cot and I was made to sit on the ground while P. W. Aurangzeb Inspector, Akhtar All Khan S. I. And Hassan Gul A. S. I. Sat on the cots including the cot with which my hand was tied. They started interrogating me by questioning me regarding my connection with the N. A. P., and the Pakhtoon Zalmai Organization as also the Pakhtoon Students Federation, but I tcld them that I have no connection with any such organization or party although I am the son of Abdul Wali Khan and that I had remained as member of the Pakhtoon Students Federation till 197i, when I was a student of the University, but thereafter, when I left studies, I was no longer a member of that Federation. However, they would not believe me and insisted that I was a member of the Pakhtoon Zalmai Organization. Then they said that, it was all right and that, "in Warsak, even the wall would say that we want". I told them that they might do anything but I would not say anything to which I was not a party. The said police officers then took me back to the lock-up and made me stand on the said platform and told me to think over. Later, when I took my dinner P. W. Aurangzeb Shah Inspector told me that he had just come from a meeting, hold in the University Police Post Peshawar, in which the I.-G. And S. P. Crimes were present and that I. G. P. And S. P. Crimes, were of the view that decision to murder Hayat Muhammad Khan Sherpao was taken at Lahore at the residence of Chaudhery Zahur Illahi M. N. A.
137. Immediately after the murder of Nawab Muhammad Ahmad Khan, father of Ahmad Raaa Qasuri M.
138. N. A., and that in that meeting my father Khan Abdul Wali Khan, Chaudhery Zahur Illahi M. N. A., Mr. Ahmad Raza Qasuri M. N. A., Malik Muhammad Qasim, General Secretary Pakistan Muslim League, Nawabzada Nasrullah Khan, President P. D. P. And Mian Tufail Muhammad, Amir Jumaat-i-Islami had participated. Inspestor Aurangzeb Shah P. W. Further told me that in the said meeting of Peshawar University Police Post, the I.-G. P. And S. P. Crimes, had further stated that after the said Lahore meeting my father Khan Abdul Wali Khan had come from Lahore to the village and that he (my father) had ordered me to make a plan for the murder of Mr. Hayat Muhammad Khan Sherpao. I denied the charges. Then Inspector Aurangzeb Shah called Hassan Gul A. S. I. And asked him "Samara Rawara" (URDU TEXT). Hassan Gul A. S. I. Brought a small box which was opened by Inspector Aurangzeb Shah and he took out too wooden replicas of the male-organ and put the same in a table and asked me to choose between the two whether I wanted Wall Khan or Sardar Daud. I told him that I was not a fit person for the same and the fittest person for those organs would be his wife or daughter. Thereupon Aurangzeb Shah Inspector started slapping me and hitting me. Then I was taken out to another room with my hands tied from behind. Hassan Gut A. S. I. Then came with a long rod of metal which had a rubber handle and an electric wire attached to that handle. I was made to stand in the centre of the room, which had no furniture and Hassan Gul A. S. Then touched that rod to my body and gave me electric shock of much severity which I could not withstand and I was thrown away. I was again pulled up and the same process was repeated five times. Then Aurangzeb Shah Inspector entered the room and asked Hassan Gul A. S. I. To get out of the room quickly because some one was coming. Later, a man came into that room and while introducing himself as Mr. Rizvi S. P., he told me that he was on the special Investigation Team for Sind and Baluchistan and that he had visited N.-W. F. P. As a member. Of the Federal Investigation team. Mr. Rizvi was accompanied by 3-4 other persons, including a short statured man who was introduced by Mr. Rizvi as a major in the Army. Mr. Rizvi told me that he is very experienced officer and that I should not play game with them. He also told me that he had investigated Field Marshal Firing case and that in that connection he had interrogated both, Mr. Bhutto and my father, I told Mr. Rizvi that if he wanted facts, that I could tell him but if he wants something else and not the true facts then that is a different matter. I further told Mr. Rizvi that if this is the way to know facts as it is being practiced In Warsak and the treatment that I have received then I am sorry I would not be able to oblige him, but he told me that he did not believe in third degree methods. Then Mr. Rizvi and his team started interrogating me. I was made to stand stark naked, tied to a pillar of the verandah and that Team interrogated me turn by turn, each member interrogating me for about 3 and 31/2 hours in continuity. They went on for 48 hours whereafter Mr. Rizvi walked out saying that there was nothing against me. He also told me that I was innocent.
139. During those 48 hours, I was not allowed to sleep nor I was given any food.
140. ' After that Inspector Aurangzeb Shah and the aforementioned Police Officer again started interrogating me in the old fashion but I told them that if they wanted me to say something, which would implicate me, then I was prepared to agree to their suggestion, but it they wanted me to involve other political leaders, including my father through my mouth, then I would not be prepared to say anything. Then they i,e, Aurangzeb Shah etc. Gave me a written statement and told me that I should learn it by heart and then on the 19th of February 1975, I was brought to Peshawar. I was taken to an office in the Crimes Branchs Opposite Secretariat, On the sign board of that room which was hanging outside on the wail, I could only read the word. "Mar war. Then Aurangzeb Shah Inspector came to that office with another yougman and he i,e, that young man asked me if I was prepared to give a statement to which I replied in the affirmative. I told that young man that I was completely innocent and then I narrated to him the whole story about what the police had done to me. I was again then taken back in the same Police Van to Warsak. Then for the next two days, the police repeated the same treatment and I told them that it was all right. It was a mistake that I did not make a statement before the Magistrate. I would now make the statement. As they wished. On the 22nd of February, 1975. I was again brought to Peshawar and was taken to the same room as before, and the same young man was brought about whom earlier Inspector Aurangzeb Shah had told me that he was a Magistrate although that youngman himself did not state before me that he was a Magistrate. I asked that young man if he would send me to judicial lock-up or I would be given back in the custody of police, in case, I did not sign the statement and he told me that the police had another file under their arm and that if I did not sign the statement which was put in front of me, then I would be sent back to Warsak. Then a typed statement was produced before me which I signed at various places. The photostat copy of that typed statement is Exh. P. W. 62/E. After I signed that statement then, I was sent to Central Jail Peshawar. Later on the 7th March of 1975 an Assistant Superintendent of Central Jail, Peshawar, brought me a summon from the Magistrate which was signed by Mr. Murtaza Khan Assistant Commissioner and S. D. M., Peshawar which contained various sections including sections 302/307/109, P. P. C. And 120.B, P. P. C., I was then taken from Central Jail to the Crimes Branch Office in an open Jeep by police personnel, including Malik Abdul Qayyum P. I. Who is today present in Court. In the Crime Branch they transferred to a white Station again said, pick-up van which was covered with canvas all round and then I was taken to Nizampur Police Station, Tehsil Noshehra, D. S. F., Muhammad Akram Khan and Inspector Qasim Qureahi, Sub-Inspector Asghar Ali Shah and S. I. Commonly as Mast-Malang had accompanied me in that pick-up to Nizam Pur. Akram Khau, D S. P. Told me in Nizam Pur Police Station that I was to say that I had provided tape-recorded to Anwar Bacha and Amjad (absconders) which ultimately blasted at the Peshawar University History Society Function on 8-2-
75. I told him that I have already answered this question a lot of times to various Police Officers including S. P. Rizvi and that Major of the Army, Intelligence, at Warsak. The following night Niaz Gul S. P. And Tamash Khan S. P. Came to Nizam Pur Police Station. Tamash Khan S. P. Told me that my mother was seriously involved in this matter and that she and my eldest sister had gone of to Kabul and that if I wanted to save my mother, then I should agree to the statement which they were giving me. I was asked to agree to sign that statement. I told him that if my mother has already gone to Kabul, then why should I sign that statement. He said that I should think over it and that he would come again. After he left D. S. P. Akram Khan made me naked and tied my hands behind my back and forced me to swellow the salted water which he was putting in my mouth by force, I was made to drink four bottles of such water and they made me lie on the table, facing upwards. D. S. P. Akram Khan had a string of plastic with which he tied my male organ tightly. A foot constable then came and he stood on my belly and started applying pressure with his feet on my belly. After 5/6 minutes I lost consciousness and when I regained consciousness, I found myself lying on the floor of the lock-up with blood on the whole of the lower part of my body. When I went to ease myself, I urinated pure blood. After sometime, D. S. P. Akram Khan again came and said, "do you now agree" I said "no". I was then again taken to the same room and this time. They made me lie with my back upwards. Then a foot constable came and stood on the small of my back and started jumping on my body with the result that I again lost consciousness, and because of that I am still having trouble in my back. I was examined on the 22nd May 1975, i,e, a day after I was brought to Abbottabad Jail in the Jail by the Doctor and he recommended that I should be examined by a Surgical Specialist but so far the Jail authorities have not been able to have my X- ray taken as recommended by the Specialist who had come to see me in pursuance of the earlier recommendation of the Jail Doctor. It is on record in the Jail Medical Journal. Late, I regained consciousness and on 11-3-75 I was taken to Matani Police Station (Tehsil Peshawar). That evening again Niaz Gul S. P. And Tamash Khan S. P. Came to Matani. Tamash Khan S. P. Had a report in his possession recorded by P. W. Madad Khan A. G.
0. Probably dated 7-12-74 and said that that was the proof which they had against my mother. He further told me that if I did not agree then they would arrest her. Then Tic-hash Khan S. P. Went out and Niaz Gul S. P. Came in. He told me that the earlier C. I. D. Report that my mother and sister had gone to Kabul was incorrect and that they have now verified and my mother is in Rawalpindi, enquiring about the whereabouts of my father. He then suggested to me that I should better agree to sign the statement which they put in front of me, if I wanted to save the honour of my family members and father. I did not believe him because I thought that the arrest of my mother must have had political repercussions and I told him so. Thereafter the said two Superintendents of Police went away. During all this time, I was not in a condition to get up or walk on my own and I was being pulled up and I could only walk with the aid and the assistance of others. Then Akram Khan D. S. P. Took a plastic bag wherein he put grounded pepper and my face was then put in that bag, tied from above. When I breathed, the pepper went into my mouth and caused suffocation and extreme discomfort to me. The pepper on account of breathing also went into my nose and eyes. After sometime they removed that bag from my face and then they went away. On 123-75 at about 10 a.m. I was put in a Jeep and was brought to Peshawar to the Office of the Crimes Branch.
141. There Tamash Khan, S. P. Took his own car and he was leading the Jeep in which I was, and I was then taken to Fort Bala Hisar, where the detention order (Exh. D. X/X), was served on me. I was taken into the cell and on reading the same order, I learnt that the place where I was confined was designated as Sub-Jail. I then got hold of the Superintendent of that Jail and asked him that if it was Jail then what was the business of the police to be present inside that Jail. The Police Officers present over there whom I could recognize were Akram Khan D. S. P., Amanullah Gandapur D. S. P.
142. Inspector Aurangzeb, Inspector Qasim Qureshi, S. I. Akhtar Ali Khan S. I. Mir Zaman, S. I. Mian Adam Shah, S.
1. Sanobar Khan, Head Constable Fatch Khan. These very persons used to visit me and Nisar Muhammad Khan accused in that Sub-jail. In fact they were stationed in that jail for interrogating us I learnt about the presence of Nisar Muhammad Khan accused in that Jail on 13-3-75 and it so happened when Tamash Khan S. P. Came to my cell on that day and Inspector Aurangzeb Shah accompanied Nisar Muhammad Khan accused to my cell. Aurangzeb Shah Inspector was asked to leave and Tamash Khan S. P. Told us that if we did not sign the statement given according to the wishes of the police, they would arrest my mother and Nisar Muhammad Khan's wife. He further said that he would give us some time to think it over. Then on the 14th March 1975, Tamash Khan S. P. Came again and asked me if I was ready to sign a document. I refused to do so. Then they stopped my food and would not let me to go to sleep. One of the Police Officials used to be always with me in that cell. Those who were on duty with me were Akram Khan D. S. P., Qasim Qureshi Inspector, Mir Zaman S. I., and Sanobar Khan S. I. For about 6 or 7 days, thereafter I did not know anything about anything. I had no watch to see the timings, nor there were any means to see the sun. I was actually kept in a cell which was underground. At that place which had been declared as sub-jail and which was underground, there were five cells on one side and five cells on the other side of the corridor. The cells on the right side were used as godowna where the eatables were stored, for the personnel of Frontier Corps and in the left side cells (five in number), Nisar Muhammad Khan accused was kept in the first cell from the point of entry. In the next two cells Police Officials/Officers, mentioned above, were staying and in the fourth cell at the point of entry, I was kept. The 5th cell was occupied by the clerks who were looking after the said godowns/ stores.
143. After 5/6 days (after 13-4-75), Tamash Khan S. P. Again came to my cell and he said, which I quote, do you agree. We are helpless, above us is Abbas Khan D. I.-G. Who is the cousin of the late Hayat Muhammad Khan Sherpao and he is not leaving our testicles, unless we make you agree to sign the statement". He further told me that even if I did sign that statement, nothing would happen to me in Court, firstly because I have already signed another confessional statement in which this occurrence has been mentioned and secondly because in this Jail the Police Officers/Officials are present with me, whose presence is illegal, as such, my confessional statement, would not be able to stand in Court. Tamash Khan S. P. Was still with me when Niaz Gul, S. P. Entered my cell and he told Tamash Khan that the other has agreed. Then Tamash Khan S. P. Asked Niaz Gul to get him (Nisar Muhammad Khan), Akhtar All S. I. Had brought Nisar Muhammad Khan accused to my cell and he himself left. Nisar Muhammad Khan accused then told me that Niaz Gul S. P. Had taken oath on "Tafheemul-Qur'an" and that if I wanted to save my mother and sisters from disgrace at the hands of the police, I should sign the document. I then also agreed. Then on the 27th March 1975, I was taken to the Magistrate. Earlier when I had agreed to sign the confessional statement, on 19/20-3-75 as stated above, then the police started giving the food and other facilities. On 27-3-75, I was first taken to the East Cantonment Peshawar Police Station and thereafter I was taken to the Courts where I was taken inside a small room, wherein came Malik Abdul Qayyum P. I. And he brought a typed statement and gave the same to a young man whom I recognized during trial to be P. W. Muhammad Iqbal M. I. C., P. W. Muhammad Iqbal M. I. C. When asked me as to how long I had remained in police custody, I showed him the detention order (Exh. X/X) and told him that from 7th March 1975 till that date i,e, 27-3-75, I had been in police custody. On this Malik Abdul Qayyum P.
144. I. Objected and said that the detention order had been served on me on 11-3-75, the Magistrate then asked me if I had that detention order and it was at this stage that I produced before him Exh.
145. D. X/X. Then he counted the days from 7-3-75 and made the endorsement marked AA in Exh. D. X/X in his own hand. At the suggestion of Malik Abdul Qayyum, he did write in the confession memo.
146. Exh. P. W. 63/E the number of days, in which I had remained in police custody, as six, then the Magistrate started writing from the written document which was given to him by Malik Abdul Qayyum P. I. And thus Exh. P. W. 63/B was prepared on which my signatures were taken. The English used in Exh. P. W. 3/E is not the English which I dictated as mentioned by P. W. Muhammad Iqbal Magistrate. My English is the one which was spoken by me today while giving this statement in English. (Note.-The accused gave the statement in English and it has been dictated almost in the same words as used by him).
147. ' After signing Exh. P. W. 63/E, was then sent to Central Jail, Peshawar. Ever since my arrest on 9-2- 75 till 27-3-75 I was not allowed to see any member of my family, although my mother had made attempts to see me.
148. ' Earlier on 21-2-75, when I was interrogated at Warsak, by Akram Khan D. S. P., Malik Abdul Qayyum P. I. Was also present, for about four hours. I was never produced before any Magistrate for remand."
149. ' The confessional statement of Ahmad Farooq is as follows remained in police custody for 10 days.
150. I know Anwar Beeha who was my class-fellow at the college and also a member of Pakhtoon Student Federation. My father was admitted in Muhammadi Hospital on 13th January 1975 (Seventy-five) because he was suffering from heart trouble. On 7th February 1975 Amjad of Surkh Dheri and Anwar Bacha of Rustam came to hospital and asked me to accompany us to Bazar to take meal in some Hotel. They had come to Hospital in an old Cheverolet Car. I accompanied them in the same car. They went to Green Hotel Sadder and Anwar Bacha got a bottle of liquor. The driver of the car purchased a gramophone recording the Bazar we then straightaway sent to University in the same ear and stopped the car near S. T. C. And we all got down from the car.
151. Amjad and Anwar took their clothes from the car and asked the driver to go away. Al that time the time was 8 p.m. Amjad took the clothes and asked us to go inside S. T. O. As I am going to keep these clothes in hostel. We then went inside S. T. C. And Amjad also returned. We took liquor and our meal in S. T. C. Canteen. I inquired from them about the car and the clothes to which they said that the car was of Nisar Muhammad Khan.
152. ' They told me that today we had gone to Polyteohnique College to blow Hayat Muhammad Khan Sherpao with a bomb to be kept in a Tape-recorder. Nisar Khan had told us that after the blast you reach to me and then I would take both of you to safe place. They told me that over there Afrasiab Khan was sitting by the side of Sherpao Khan and therefore we have postponed our programme.
153. They told me that they have loft the tape recorder in the house of Asfand Yar near Shahi Bagh. I then returned to Hospital.
154. ' On 8-2-75 Amjad and Anwar again came to Hospital at about 11-30 a.m. And told me that Hayat Muhammad Khan is going to attend a function in History Department today and we are going to collect that tape-recorder from Shahi Bagh. They also told me that you will drop us near History Department. I was also going to University Town to bring the sight glasses of my uncle Retired General Jilani Amjad and Anwar also accompanied me and I dropped them on Arbab Road Sadder.
155. ' At 3.00 p m. Amjad and Anwar again came to Hospital and asked me to take us now to University History Department. I accompanied them in my Car No, K A K 59-Datsum. I stopped my oar near Post Office in University. They told me to sit in the car and wait for us. After half an hour they again returned. Amjad had changed his clothes and was having a pistol while Anwar was having soma clothes and shoes in his hand. After that we came back and I dropped Amjad near Sabrina Cinema he went there and came back after half an hour and asked me to take us to Taxi Stand. I then dropped them near Taxi Stand and I went back to home. While we were coming back from University Amjad told me that I went inside the Hall where Hayat Muhammad Khan had to come and left Anwar outside the Hall, because he is an outsider therefore it was objectionable. Amjad was a student of M. Sc. Zoology. He also told me that I kept the tape-recorder on the stage in which a bomb was fitted by Sher Zaman of Badshahi Killa and pressed the button while I heard that Chief guest has started. He told me that 40 minute duration was zed for explosion.
156. ' Explaining the confessional statement Ahmad Farooq made the following statement at the trial "I did not take the said absconding accused in the said car to the cable factory of Nisar Muhammad Khan accused, on the evening of 8-2-75 but I do not know if this car was got identified from P. W.
157. Amanullah because on 28-3-75 I was in Jail. . . . . , ' I have not made any voluntary confessional statement. Both Exh. P. W. 63/C and Exh. P. W.
158. 6.1/M do bear my signatures but the same were taken from me by force under the circumstances which I state below.
159. ' On 18-3-75, I was in Toot Killi Le. The village of my maternal uncles in Mardan District. It was 4 p.m.
160. Time. I was sitting in the Hujra of my maternal uncle when Muhammad Masud Khan Inspector (P. W.
161. 67) accompanied by A. S. I. And some foot constables, came there in two cars, one of which was a Yolks Wagon belonging to Tamash Khan S. P. They enquired about me and I told them that I was Ahmed Farooq. They told my maternal uncle that they should not mind my being taking away to S. P. And that after some talks I would be allowed to come back in the evening. My maternal uncle asked the police party, if there was anything against me Out he was told that there was nothing and that some enquiries were to be made from me. My maternal uncle told the police that if there was anything against me then they would give me my clothes and bedding to be taken away alongwith me but the police party said that there was nothing against me. Inspector Masud Khan (P. W. 67) then took me in the Yolks Wagon car and rest of the Police officials followed us in the second car. From Mardan onwards, the other car did not follow us and Masud Khan Inspector took me to Peshawar. While approaching Peshawar, P. W. Masud Khan Inspector told me that I was being taken to Tamash Khan S. P. Where other officers would also be present. He then advised me that I should accept what they were going to tell me and that it would be in my interest to do so. I was then taken straight to West Cantonment Police Station, Peshawar, where I was made to sit in a small room. After a while, Tamash Khan S. P. And Niaz Gul S. P. Came to me. Tamash Khan S. P. Then started enquiries from me regarding my education, residence and employment. Then Tamash Khan S. P. Asked me, if Major General (Retired) M. G. Jilani, M. P. A. Was my real uncle to which I replied in the affirmative. He also told me that I knew that my father was a serious heart patient. He also asked me if I knew that my elder brother had been arrested on 9-2-75 to which I replied in the affirmative. Then he said that I should better agree to some of their suggestions and that it would be to my advantage. I refused to d. So then he told me that I should reconsider my decision, otherwise I would be entrusted to executionist (Jalad). He also asked me if I had heard the name of Warsak. Then he asked Masud Khan Inspector (P. W. 67) to go to Port Bala Hisar and bring "my father". After a while P. W. Aurangzeb Shah Inspector, came. Tamash Khan S. P. Then told Aurangzeb Shah Inspector mentioning my name to him that he should talk to me in his own way. Then my person was searched and I was made to sit in the jeep and was taken away to Warsak. It was 9 p.m. Time. I asked Aurangzeb Shah Inspector to send message to my family for my clothes etc. But he told me that it was a hell and that I would be allowed after they take accounts from me. I was then put in the lock-up and after a while Inspector Agrangzeb Shah accompanied by Hassan Gul A.
162. S. I. Came to me to the lock up. Aurangzeb Shah Inspector then told Hassan Gul A. S. I. To acquaint me about what happens in Warsak and as to how that place was. Aurangzeb Shah Inspector also said that once a person comes to Warsak, then he can go away only after he admits every thing which he is desired to admit. He told me that if I did not believe him, he could quote the example of Nisar Muhammad Khan and Asfand Yar Wali accused and said that they had inserted sticks, in his anus and that they were obliged to admit every thing. I was then asked to take off my Chaplis and was then made to stand with the iron bars (Jangle). I asked him to be informed as to what was the charge against me but Aurangzob Shah Inspector said that I should accept what they wanted me to say. After a while they brought a young man which I did not know and I told them when asked to identify him that I did not know that person. Aurangzeb Shah Inspector then told me that it was alright even if I did not know him (that man) but he would soon know me. Then that young man was asked to leave. Later on after a few days I learnt that the name of that person was Amanullah, and he is the same person who has appeared in this case as P. W.
52. Then Aurangzeb Shah Inspector, asked Hassan, Gul A. S. I. To bring handcuffs and tie my hands with some thing above in the lock-up so that I cannot bring down my hands and I am unable to sit down. I spent the whole night in such condition and at interval Hassan Gul A. S. I. Used to visit me, asking if I was going to agree to their suggestion. On the following day, except that I was allowed to ease myself I was neither given food nor tea. In the evening, then Tamish Khan S. P. And Niaz Gul S. P. Came to Warsak. Tarnish Khan enquired from Aurangzeb Shah Inspector whether I had agreed to their suggestion to which Aurangzeb Shah Inspector replied in the negative. I was then released and taken to another room where Tamash Khan S. P. Was sitting. Tamash Khan told me that they had waited for 24 hours during which period, they have not ill-treated me, but that henceforth, I would be subjected to torture. I asked Tamash Khan S. P. As to what I was required to agree to, but he said that first I should accept their suggestion that I would agree and then they would make the situation clear to me. I refused to agree to their suggestion and then Tamash Khan went away.
163. While going away, he gave instructions to Aurangzeb Shah Inspector that he should now deal with me in his own usual way. I was then again taken back to the lock-up where I was tied at the old place. After a while Hassan Gul A. S. I. Came to me. He had an iron rod in his hand with a plastic handle to which electric wire was connected and with that he started giving me shocks. I then lay down, but Hassan Gul A. S. I. Asked the Foot Constables, to take me back to the same old place, and tied so that I could not go to slbep. Next day. Aurangzeb Shah Inspector again asked me to reconsider the matter, but I refused. Then I was kept for the whole day in the lock-up and at night Inspector Aurangzeb Shah took me to his own room. There I was made to lie on the cot with my bask upwards. Hassan Gul A. S. I. Told Aurangzeb Shah Inspector that my clothes may be taken off.
164. My clothes were then taken off and I was made naked and was tied in the said condition on the cot.
165. Then they brought some hoe water and a brush and then they would first sprinkle cold water on my back and there after sprinkle hot water on my back with that brush. I was then released and was later tied with a pillar of the verandah. Late at night then they allowed me to put on my clothes and then I was put in the lock-up. Next day, Aurangzeb Shah again came to me and told me that it was a last warning and that I should agree. He then asked me if I was married. He then asked Hassan Gul, A. S. I. To bring the "Samara" (URDU TEXT). Then Hassan Gul A. S. I. Brought something covered in white piece of cloth which was opened and it contained wooden male organs. Aurangzeb Shah Inspector told me that one of the wooden replicas of male organ was Ajmal Khattak and the other was Sardar Daud and that I was to choose between the two. Aurangzeb Shah there and that people in plain clothes were sitting in the jeep. The Magistrate, however, did not take any notice of my complaint. Neither on the occasion, when I was taken for the purpose of signing the confession memos nor any other previous occasion, I was told by any one, that I would be put in the identification parade for the purpose of identification. On 29-3-75, when my father met me in Jail, he told me that the car of the Company (Exh. P. W. 38/1) had been taken away by the police on 16- 3-75. He told me that Masud Khan Inspector (P. W. 67) had taken away the car from Mardan and that he was accompanied by several other policemen. My fatheris a heart patient and he has kept driver to drive the said car Le. Exh. P. W. 38/1. I do not know driving nor I have any license for driving car. My father bad told me that the driver of the car had driven the car with the police at the instance of the latter from Nishtarabad Peshawar. My father also told me during the said meeting that the police bad taken away the car without disclosing any reason. Alongwith the car Exh. P. W.
166. 38/1, the police had also taken away in a pick-up my brother-in-law and his two brothers. During the days of accurrence, since my father was ill and he was in Peshawar Muharumadi Hospital, therefore, I used to come daily to my office from Toot Killi. On Saturday, I used to come to Peshawar to inquire about the health of my father. My mother and sister used to be with my father in the Hospital."
167. ' The learned counsel for the accused appellants contended that the learned trial Judge was not justified to have relied upon the evidence brought on record, as the same would appear to suffer from material infirmities In all respects. As against this, the learned Advocate-General contended that in view of the ocular as well as circumstantial evidence coupled with the confessional statements of the accused appellants, the guilt of the accused appellants is proved to its hilt and thus the impugned judgment does not call for interference.
168. ' We have heard the arguments addressed before us by the learned counsel for the parties at considerable length, gone through the evidence on record and perused the impugned judgment.
169. ' It is established from the statement of Major Mehr Zeman (P. W. 65) that a tape-recorder of the description characterised by him had been used in causing the blast. The fact has further been proved by the medical evidence. The casualities were of about twenty in number from whose' wounds splinters of such material were removed by the Medical Officers in C. M. Hs., Rawalpindi, Peshawar and Spencer Hospital, Karachi. The points which agitate our mind on this aspect of the case are :
(a) Whether the tape-recorder ascribed by Muhammad Shafiq, Payne Iqbal and Gul Amir P. Ws. To Amjad All absconding accused has been used as a decoy for causing the blast. The witnesses of Category 'B' mentioned above, who were present in the Hall at the relevant time have placed the responsibility primarily on Amjad Ali absconding accused and for that matter on Anwar Bacha absconding accused. These witnesses were examined after the foundation-stone for the prosecution case was laid by Major Mehr Zaman who examined the spot on 9-2-75 and opined that a tape-recorder has been used for causing the blast.
(b) The next question is whether the investigation of the case after obtaining the expert opinion proceeded independently, following the course of events or it has been channelized in the desired direction. The discussion on this aspect in the succeding paragraphs dovetails in the direction of the latter probability.
170. ' None of the witnesses from Category 'A' mentions the existence of the disputed tape-recorder, muchless of the chair containing it. P. W. Faq Muhammad Khan, Security Incharge, on this view is a witness of primary importance, for he is the person responsible for the arrangement in the function.
171. He was, therefore, present in the Hall before the witnesses poured in. Dr. Munawar Khan is another witness of significance. He was seriously injured in the explosion. He too is not supporting the prosecution on this aspect of the case, for he does not state that there was any tape-recorder lying in any chair. Similarly, the other witnesses of this category, namely, Miss Almas and Zahida Niazi, the audience of the first and second rows, do not support this fact. P. Ws. Muhammad Usman and Sher Hussain of the Information Department also fall in this category and they also do not support the view that there had been a tape-recorder lying in a chair. The witnesses of this category being close to the rostrum, the tape-recorder must not have escaped their notice, had it in fact been there visible to the gaze. The last two mentioned witnesses are professionally concerned with similar functions to use appliances required for the occasion therefore, due weight must be given to their testimony. In the context, it is pertinent to record our observations on the demonstration before us. The tape-recorder (Exh. P. W. 10/I) is stated to be similar to the controversal tape-recorder. We got it placed that on the seat of a chair the Court room. It covered almost the entire seat of the chair in flat position. When it was tilted back so as to touch the back of the chair, the seat of the chair did not correspond to the one appearing in the post-incident photograph to present a vacant appearance. The tape-recorde was then placed upright in horizontal position in the chair and it became still more vividly visible even from a reasonable distance. The demonstration was conducted with a view to ascertain if the chair could appear vacant in any position while the tape-resorder was placed in it. Therefore, the evidence of the witnesses of Category 'B' on this predominant feature of the case is not readily acceptable.
172. 'Sher Hussain (P. W. 9) stated : "In photographs (Exh. P. W. 9/1 and Exh. P. W. 9/2) in front of late Mr. Sherpao at the bottom of photographs appears a portion of a back of a chair which also came in these photographs."
173. ' We have carefully examined these photographs even with the assistance-of the learned Advocate-General and our conclusion is that no chair with its back to the audience is visible in these photographs.
174. ' Muzaffar Shah (P. W. 60) a Radio Mechanic, was produced to corrobo rate the testimony of Muhammad Shafi (P. W. 10) that "Amjad Ali absconder pushed my hand aside and himself started re-pressing the button when in this process the tape-recorder started moving."
175. ' P. W. Muzaffar Shah stated that in the tape-recorder of the type in question if the amplifier Is removed, a sufficient space remains to accommodate foreign matter. But we do not feel concerned with his evidence, for in view of the material brought on record in this case, we have come to the conclusion that the explosion in the incident is shrouded in mystery, only God knows of the hand that enacted the tragedy and what P. W. Muhammad Shafiq has stated is an afterthought suppressing the real picture. We, therefore, preclude the evidence of P. W. Muzaffar Shah from consideration, although the learned counsel for the parties vehemently contended for and against what he has deposed.
176. ' Muhammad Shafiq (P. W. 10) spent one night in the Police Station where he was interrogated and he stated- "On the night in question I had narrated the whole version of the occurrence but that officer did not record my statement."
177. ' He further stated :- "Police took my statement in the form of questions and answers in two/ three hours. I spent that night in Police Station."
178. ' The element of pick-and-choose by the investigating agency cannot he ruled out under the circumstances which in turn reflects on the actual version of the incident given by the witness which was not recorded and therefore at the trial Court the learned Special Public Prosecutor was unable to supply copies of their statements to the defence. Nevertheless, the learned Advocate- General contended that P. W. Muhammad Shafiq has clearly stated that "the incharge of the police post was taking rough notes" from which, according to him, it would be obvious that his statement was not recorded at that time. This contention has not impressed us. For by taking rough notes what the police clearly intended was to know the real position of the incident on the basis of which they were to proceed with the investigation of the case and thus they must have reduced the same into writing which was, however, concealed from the Court so as to deprive it from arriving at a correct conclusion. At this juncture, a serious question can be raised against the prosecution as to why the statement of this witness and for that matter the statements of other witnesses who were spo witnesses were not recorded under section 161, Cr. P. C. On the same day or on the following day. There was no justification for the police to hay delayed their statements. In law, the police is duty bound to record the statement of a witness no sooner he appeared before them in a criminal case. It is not disputed that they were star witnesses of the prosecution who could not be said to have been prevaricating in any manner. It is a matter of record that their statements were recorded few days after the occurrence and thus an adverse inference can be drawn against the prosecution that the witnesses had made their statements in line with what was suggested to them by the investigating agency. It may here be observed that once it comes on record that in a criminal case, the witness had appeared before the police on the first available opportunity but his statement under section 161, Cr. P. C. Was delayed, his evidence should not be given that sanctity as is generally given to the evidence of a witness whose statement had been recorded no sooner he had appeared before the police.
179. ' Now reverting to P. W. Muhammad Shafiq. That he would appear to be a witness of no confidence is clear from the contradictions and exaggerations appearing in his evidence. In his police statement, be stated that "he saw the flash rising from the floor". But when confronted with this statement in the trial Court, he resiled from it saying that "he saw the flash in front of Sherpao". This votle face on his part clearly shows that the prosecution has failed in its attempt to make improvements in the case as against the real episode. There is yet another objection which can be raised against him in view of which it would be entirely unsafe to place any reliance on what he has stated. The witness has fully described the clothes of Amjad Ali absconding accused and its colour. Yet he expressed his inability to : "describe the details of the cloth and the footwears with the other six students named above who have been brought with me to Abbottabad by the police as foresaid are wearing."
180. ' It is indeed astonishing that he remembered the details of the clothes o Amjad Ali abscoudiog accused after quite a few days but was unable to give the description of the clothes and the footwears of those whom he had seen on the day and on the preceding day of his examination in the trial Court.
181. ' At the fag end of the cross-examination, he stated : "I do not know why it is incorrectly recorded in my police statement with which I have been confronted that the flash rose from the floor."
182. ' The denial is obviously a futile attempt to bring his statement in accord with the theory of a tape- recorder in a chair. In this context, the following statement of Muhammad Usman (P. W. 1), aforesaid employee of Radio Pakistan, of Category 'A' may be reproduced : "Sherpao again came to the rostrum and he had hardly spoken a few sentences when a blast occurred and all that I could see was a flash inbetween the table and the rostrum."
183. ' Similarly, the evidence of Parvez Iqbal (P. W. 12), Gut Amir (P. W. 13) and Syed Farkhunda Jan (P. W.
184. 17) of Category 'B' on this aspect of the case, which indeed is very important having crucial bearing on the main feature of the case, cannot be accepted on its face-value when we see that it has not been supported by all those whose presence at the material time at the spot is established by physical facts and who do not support them. It is indeed strange that the slogan of "Chamcha" was audible only to Parvez Iqbal and Farkhunda Jan but at the same time it could not be heard by any other witness in the Hall. The fact also reflects on their credibility which they seem to have added to their statements with a view to emphasize what they have stated. The evidence of P. W. Gul Amir loses its importance in view of the fact that he was in the rear of the Assembly Hall where P. W. Faqir Muhammad Khan was admittedly present at the material time and he does not support P. W. Gul Amir on this aspect. What is indeed more interesting is that P. W. Muhammad Shafiq who is a star witness of the prosecution and was also sitting in the rear also does not support P. Ws. Farkhunda Jan and Gul Amir from which it would be obvious that the slogan of "Chamcha" was never booted on the occasion.
185. ' The scene of occurrence as re-arranged on 9-2-75 for examination by Major Mehr Zaman (P. W.
186. 65) obviously could be arranged only by those who bad seen the arrangement before the incident.
187. In the re-arranged scene, we do not find any evidence to the effect that a chair with its back towards the audience was also included. It follows from it that the persons who re-arranged the scene were not aware of any such chair. The arrangement for the function could not have been made by P. W. Faqir Muhammad Khan alone who must have employed other persons as Chowkidars etc. For the job. It can here be said with certainty that the chair in question was not included in the re-arranged scene, because it was not there on the previous occasion. The conclusion, therefore, would be that the existence of such a chair was necessitated after the opinion of P. W. Major Mehr Zeman was available. He stated : "All those observations which were made by me at the scene of occurrence on 9-2-75 as indicated above led me to the following conclusion that-
(a) A tape-recorder of Japan-origin was improvised into a time-bomb by placing approximately two pounds high explosive inside by removing certain inner components from the tape-recorder. A percussion delay action firing switch of the foreign origin was used with it to give the required delay.
(b) The tape-recorder was placed on a class-room chair of about feet height.
(c) The tape-recorder was in a horizontal position at the time of explosion.
188. ' This opinion by the expert for all practical purposes appears to have been a guideline for further progress of the case.
189. ' If flash emanated from the ground-and we have no reason to disbelieve it-then the ocular testimony in this regard is in conflict with the opinion of the expert on the point of the origin of the explosion. The opinion of an expert undoubtedly has a corroborative value and is useful for ascertaining the truth of direct evidence, But it is absolutely uncommon to accept an opinion in preference to the preponderance of direct testimony. In the case of Mir Abbas Hayat Khan v.
190. Emperor (1), it was held:- "The opinion of an expert has a corroborative value only and is useful for ascertaining whether the direct evidence is true or not. It is absolutely unsafe to base a conviction on that opinion only, when there is no other evidence in the case ; for it can never be said with certainty that the weapon with which the crime is said by the expert to have been committed, though found in possession of the accused person, was in his possession when the offence was committed."
191. ' No splinter was found in the perforated parts of the carpet nor in the pockpits under the carpet on the ground, which should normally have been there if the direction of the splinters had been from above downwards This fact militates against the theory propounded by the expert that there was a tape-recorder in the chair. In the absence of this objective evidence, the theory of explosion in a chair is not readily acceptable. This conclusion finds support from the fact that the Pathologist found several charring marks on the person of Hayat Muhammad Khan Sherpao deceased. The other probable theory that the object of explosion might have been on the ground under the circumstances cannot be kept altogether out of consideration, to which we would advert at an appropriate stage.
192. ' Mian Mohibuddin (P. W. 16) deposed that he had seen the tape recorder with the absconding accused on 7-2-75 in the morning at the Mission Hospital. He admitted that in the Police Station he was shown the photograph (Exh. P. W. 16/1) allegedly taken in the Mission Hospital. In the said photograph, he is shown standing with Amjad Ali absconding accused. He also admitted that he, Ahmed Farooq accused appellant and Amjad All absconding accused belong to the same family of village Surkh Dheri.
(1) AIR 1937 Pesh. 99 ' He also admitted that his father was them serving as Sub-Inspector in the Police Department and after his retirement, he joined Pakistan Peoples' Party and was nominated in that Party as Chairman for village Surkh Dhoti. He also admitted that the members of the family from his side had cast their votes against Major General (Retired) Ghulam Beni, the uncle of Ahmed Farooq accused appellant who was contesting election on N. A. P. Ticket. It would thus be clear that he is a witness of partisan nature and hence the possibility that he may have stated what had bean hammered into his ears to recoil on his testimony as being inspired cannot be ruled out. It is hardly necessary to say that in this part of the country the rival political pasties and particularly tarboors take each other as their enemies. Under the circumstances, his evidence will have to be looked into with all care and caution. As indicated above, his evidence is that he had seen the tape-recorder with the absconding accused at the Mission Hospital on 7-2-75. The tape-recorder shown to us in Court is said to be of the type allegedly carried by the absconding accused. The said tape- recorder which we saw is not quite handy. It weighed about 7 seers. The purpose of its being carried along with wherever the absconding accused went is not therefore, understandable. In any case, under the circumstances it required all precaution to conceal it and its ostentation in the manner described in the evidence is indeed curious. It is conceded that the same could have been easily concealed in the rear of the car. Even otherwise, itI would be futile to suggest that the absconding accused had been openly taking along with them a tape-recorder from place to place-for they had allegedly determined to accomplish with It a criminal design of far-reaching consequences. Similar suggestion is evidently against human psychology and we reject it our right.
193. ' Nawab Khan (P. W. 53) does not seem to be a truthful witness. W have found that his evidence suffers from serious material infirmities and exaggerations. In addition to it, he is not supported by those witnesses! Whose evidence under the circumstances must have lent oorroboration to what he has deposed. In support of these conclusions, we new proceed to furnish our reasons :- ' To begin with he stated in examination-in-chief:- "On the day on which late Sherpao was murdered, two college boys came to the aforesaid Adds at about 9 or 10 a.m. And they asked me that I should take them in my Taxi to Charsadda... While coming out of the said bungalow as aforesaid Amjad absconding accused had a tape-recorder with him over which some gramophone records had been placed and the tape-recorder and said record had been tied in a handkerchief."
194. ' A look at his evidence to the above effect will show that he seems to have put the Court to intellectual exercise. In the first place, it is a matter of common knowledge that the handkerchief is a small piece of cloth and thus his assertion that the tape-recorder and gramophone records were tied in a handkerchief is simply gratuitous. Notwithstanding this position, we assume that he meant it a large cloth. Now he admitted that the tape-recorder and the gramophone records were already tied in that cloth. In other words, his evidence does not show that he had seen the same or the same were tied in his presence. He has thus left the question to our imagination whether it were in fact the tape-recorder and gramophone records that were tied in a both. We have given our anxious thought to his evidence in this respect and we are firmly of the view that he is not a witness of the type whose evidence inspires confidence. It is indeed entirely inconceivable as to how was he able to know that in the cloth in question precisely a tape-recorder and gramophone records were tied. In so far as tape-recorder is concerned, perhaps one would be able to take it either for a radio or tape-recorder in a cloth in which it has been covered as both these things resemble each other. But one cannot specifically say that precisely a tape-recorder is covered in the cloth. In so far as gramophone records are concerned, it would be entirely idle to suggest that one would be able to know the same which have been covered in a cloth, unless this has been done in his presence. The witness does not claim to own spiritual power so that his oracles had it dawned upon him that a tape-recorder and gramophone records were tied in the so-called handkerchief.
195. For these reasons and for the reason that he does not claim to have seen the tape-recorder and gramophone records with his own eyes allegedly covered in the so-called handkerchief, his assertion that these were the same things would evidently be wholly presumptuous and hence we straightaway reject his evidence in this respect.
196. ' In examination-in-chief, he further stated:- "From Shahi Bagh we took the Canal Bank Road and went to Sardheri where from we went to Charsadda on the main road."
197. ' Explaining the above statement, he stated :- "The accused told me that was the shorter route which was to be taken."
198. ' It will be seen that he bad not taken the absconding accused via Sardheri while allegedly going to Shahi Bagh, although it was a shorter route. His evidence will suggest that the absconding accused were in haste, because they did not spend much time at Shahi Bagh. It can, therefore, be safely inferred that had he taken the two absconding accused in his taxi-car on 8-2-75 to Shahi Bagh, certainly they (the absoading accused) would have asked him to take that shorter route via Sardheri to and from Shahi Bagh. Had he stated that while going to Shahs Bap through the longer route, the absconding accused had met someone in the way, his evidence in that case would have carried some sense. But he has said no such thing and thus his deposition in this respect loses its evidentiary value.
199. ' He further stated in his examination-in-chief _:- "Later, on that very day at about 5 p.m. I saw the aforementioned two boys namely, Amjad and the other whom I have mentioned as Anwar, came to the said Taxi Stand and they hurriedly boarded another private taxi car bearing No, I. R.
200. 4835. The name of the driver of that Taxi Car is Rahim Shah. Either Amjad or Anwar placed, rather threw, those aforesaid gramophone records towards the space behind the seat near the back windscreen and asked the driver (Rahim Shah) to start the car to Charsadda."
201. ' In this respect, the evidence of Rahim Shah (P. W. 55), Amanullah (P. W. 52), Faqir Muhammad W.
202. 23) and Muhammad Hussain (P. W. 24) will have to be looked into in order to see whether they have corroborated him in his assertion that the absconding accused had gramophone records with them. To begin with, the evidence of P. W. Rahim Shah is silent in this respect. He has said not a word that the two absconding accused had gramophone records with them, muchless that one of them had thrown the same in his car. Had it been a fact, surely P. W. Rahim Shah would have pointedly made a statement to this effect, because it was in his oar that the two absconding accused had after the occurrence allegedly gone up to Bakhshu Bridge. Insofar as P. W. Amanullah is concerned, it is alleged that the two absconding accused had gone to him after the incident. But he too has said not a word in his evidence that the two absconding accused had gramophone records with them. The allegation of the prosecution against the two absconding accused is that after P. W. Rahim Shah driver dropped them from his car near Bakhshu Bridge, they took their way in the direction of village Hindko Daman where in the fields they met P. Ws. Muhammad Hussain and Faqir Muhammad. We have gone through the evidence of these two witnesses minutely, but are unable to find that they have said that the two absconding accused had anything with them, muchless gramophone records. What is more interesting is that his evidence suggests as if his and the car of P. W. Rahim Shah were parked side by side in the Taxi Stand. In view of what we have said above, we are not prepared to believe that this coincidence had taken place. We ate not prepared even to believe him in his assertion that be was present in the Taxi Stand when the two absconding accused allegedly came to the stand, for it does not stand to reason that in his presence, when the two absconding accused allegedly came to the Stand, they hired the car of P. W. Rahim Shah, because he (P. W. Nawab Khan) bad allegedly taken them to and from Shahi Bagh in the morning of that day and had proved himself to be a suitable Taxi Driver to their statisfaction.
203. ' The prosecution has indeed caused us all bewilderment in this case and thus at appropriate stages, we were driven to pass some remarks in order not only to refresh ourselves but to place our finger on its highly exaggerative account. While the absconding accused allegedly came to P. W.
204. Amanullah after the occurrence, he (Amanullah) does not say that he had seen anything with them ; thereafter at the Taxi Stand, gramophone records with them come to the gaze of P. W.
205. Nawab Khan and these are not visible to P. W. Rahim Shah : then these things get disappeared when in the way they meet P. Ws. Muhammad Hussain and Faqir Muhammad in the fields of village Hindu Daman ; and In the Bazar of Charsadda Tehsil during the night, the same things get transfigured into a pistol and camera. Only a magician can be expected to show such performance.
206. ' For all these reasons, it would, therefore, be manifestly clear that P. W. Nawab Khan has not satisfied the test of a truthful witness and thus, as a matter of sheer logic, it can be conveniently concluded that he had been arrayed as an impostor witness to depose in the cases.
207. ' F. C. Murad Khan (P. W. 51) stated : "I was pasted on Special Watch Duty at the bungalow of Khan Abdul Wali Khan in Shahi Bagh, Tehsil Charsadda, District Peshawar, for the last two and a half ysars. My duty was to watch and note any person or vehicle coming from outside and entering the bungalow of Abdul Wali Khan and vice versa from day to day and to note the same in the diary which we regularly maintained. I produce the diary perta ning to 8-2-75 regarding the visits and departures of visitors to the said place etc. Exhs. P. W. 51/1 is the true copy of the same. In this diary, it is recorded that four unknown persons came in Car No, AJK 6301 to the said bungalow of Khan. Abdul Wali, at about 11 a.m."
208. ' Having disbelieved P. W. Nawab Khan that he had taken in his Car No, AIK 6301 the two absconding accused to the bungalow of Abdul Wall Khan at Shahi Bagh on 7-2-75, the evidence of F. C. Murad Khan P. W. That in the above said car four persons had came to the bungalow in question on the same date loses its existence as a matter of automation. Even otherwise, this evidence would appear to be bereft of credence in view of the material brought on record against the objectionable conduct of the investigating agency in the case. It is a matter of record that in the present case, a good many witnesses were forced by the investigating agency to appear in the witness-box against the accused appellants from which it g would be clear that what such witnesses have stated in the case is that' suggested to them by the investigating agency. In view of this fact, P. W. Murad Khan cannot be termed as an exception in the case, especially when notice is taken of the fact that being a member of the same fraternity, he cannot be expected to have had no such interest in the case as the investigating agency. In other words, he must be held to have spoken in the case what was suggested to him by his fellow-men in the investigating agency. But what is more interesting in respect of this witness is that his statement was recorded as late as 1- 4.15 (i,e, after about two months of the occurrence), while in the normal course of things, he should have been examined by the investigating agency no sooner than that agency laid their hand on Asfandyar Wali accused appellant in view of the fact that he was permanently posted from the last about two and a half years on Special Watch Duty at the Bungalow of Khan Abdul Wall Khan. It cannot be said that the investigating agency was unaware of his posting at the bungalow of Khan Abdul Wali Khan or for that matter any body else to perform such duty at that bungalow and thus ho could not be examined in time immediately after the arrest of Asfandyar Wali accused appellant in the case. Under the circumstances, it would, therefore be amply clear that what Murad Khan F. C. Has stated is that put in his mouth by the investigating agency. The learned Advocate- General, however, contended that in any case, ho has produced the diary of 8-2-75 (Exh. P. W. 51/1) to show that P. W. Nawab Khan had taken three persons in his car to the bungalow of Abdul Wall Khan at Stiehl Bagh on 8-2-75 and thus his evidence is worthy of reliance. This contention has not impressed us. In view of what we have said above, we are entirely satisfied that Bah. P. W. 51/1 is a forged document. It is hardly necessary to say that it was very easy for the investigating agency to have produced a similar document, as that agency belongs to the same fraternity to which P. W.
209. Murad Khan belongs, and thus the document cannot be said to have emanated from an independent quarter. F. C. Murad Khan can be dubbed as a false witness for one reason more :- "My duty was to watch and note any parson or vehicle from outside and entering the bugalow of Khan Abdul Wali Khan from day to day, and note the same in the diary, which was regularly maintained."
210. ' But he has contradicted himself in this respect, for he has produced no such diary of 7-2-75, as on that date P. W. Ihsanullah claims to have had the two absconding accused taken in his Car No, SWAT 244 to the bungalow of Abdul Wali Khan at Shahi Bagh. The evidence of this nature of the witness would appear to reflect on what he has stated. If he could record the Number of Taxi Car of Nawab Khan in his daily diary of 8-2-75, he could as well record the Number of the Car of Ihsanullah in his daily diary of 7-2-75 which, according to him, was his duty from day to day. It would, Therefore, be clear that all these three witnesses, namely, F. C. Murad Kihan, Nawab Khan and Ihsannllah have been procured by the prosecution to support its false case against the accused appellants.
211. ' For all the foregoing reasons, we straightaway reject the testimony of F. C. Murad Khan as wholly false.
212. ' Ihsanullah (P. W. 47) deposed that he was on duty with the absconding accused on the day prior to the day of incident and it was in his car in which the two absconders had allegedly gone to the Mission Hospital. However, nothing is said by Ihsanullah that he had seen a tape-recorder with the two absconding accused at any stage of his duty with them, particularly at Shahi Bagh. The following statement of Mian Mohibuddin in his examination-in-chief demonstrates the incoherence in his evidence and that of Ihsanullah "Amjad absconder and myself posed for a photograph which was taken by Anwar absconder with the camera of Amjad absconder Amjad and Anwar abscoders bad come to the Hospital in a two- tones Cheverolet Car of white other yellowish tube colour Both Amjad and Anwar absconders left at about 12 noon, leaving behind the Car Exit. P W. 16/2 in the pemises of the ehospital. The driver of the Car was also left behind, I then went to sic p and when I got up, the Car and the driver were not there."
213. ' As against this P. W. Ihsanullah driver says not a word in his examination-in-chief about either of the two events underlined* by us. Even when his attention was drawn in cross-examination by the learned counsel for the defence to his alleged visit to the Mission Hospital along with the two absconding accused, he does not mention the same, as according to a well-known Persian adage, "{{URDU TEXT}} has no memory", although he said this much that they had visited the Mission Hospital. But this would not satisfy one's mind that he is a true witness in his assertion that in his car he had taken to Peshawar the two absconding accused on 7-2-1975. Is is inconceivable as to how could he forget such events if these had taken place as a matter of fact. This part of the narrative by Mian Mohibuddin is thus not supported by Ihsanullah, who otherwise professes to be a man of alert mind with graphic memory. What is indeed more interesting is that in his examination-in- chief, P. W. Ihsanullah had already skipped over his alleged visit to the Mission Hospital and it was only in reply to a question put to him by the Special Public Prosecutor that he said, "From Gora Bazar, we had gone to the Mission Hospital." The learned Special Public Prosecutor was not justified to have reminded him to speak of the alleged visit to the Mission Hospital. Had he not interrupted during the course of his examination-in-chief, perhaps he would never have mentioned his alleged visit to the Mission Hospital. In other words, it would be clear that he had never taken the two absconding accused to the Mission Hospital on 7-2-75. Now P. W. Mien Mohibuddin was linked with him to corroborate his version about the alleged visit of the two absconding accused to the Mission Hospital, and thus as a necessary corollary, both Ihsanullah and Mian Mohibuddin would evidently be false witnesses in the case. It appears that P. W. Ihsanullah, a sworn witness, is trained in the art of manipulating things. In cross-examination, he says.
214. "I had no watch, therefore, I cannot tell the exact time when we remained in the Mission Hospital As it was cloudy day and the sun was not visible [Here in italics] ' While making his statement before the trial Court, he had a watch on his hand. When asked as to how was it that he had then a watch on his hand, he stated "The watch which I presently have on my hand today in Court was given to me by a "Darrwawal" ten days ago in Matani Poliar Station, again said in Sadder Police Station. That person who gave me this watch is my friend. His name is Rahman Oul. He gave me this watch because there was some defect in it and he told me that-I should get it repaired from a watch-maker."
215. ' On his own showing, he was throughout in the custody of Police.-Therefore, it does not stand to reason that he could be given a watch by his-friend for repairing it. Under the circumstances, it would thus be highly imprudent to place any reliance on a person of this demeanour.
216. ' The prosecution has it from the confessional statements of the accused, appellants that on 7-2- 75, the two absconding accused had taken with them the alleged tape-recorder to the Polytechnic Institute, Peshawar, in order to blast with it late Hayat Muhammad Khan Sherpao who had attended as Chief guest a function arranged in that Institute at 10 a.m. The absconding accused, however, gave up to consummate that design, as Afrasiyab Khattak was sitting by the side of late Hayat Muhammad Khan Sherpao. In this respect, the statement of P. W. Ihsanullah will have to bo looked into in order to see whether he had said that the two absconding accused had visited the Polytechnic Institute, Peshawar, on 7.2-75, for, according to him, on that date from 8-30 a.m. He was on duty with them. A look at his statement will make it clear that it does not show any such visit of the two absconding accused on 7-2-75. It follows from this that P. W. Ihsanullah is-not a truthful witness. In other words, it would be clear that neither P. W. Ihsanullah was on duty with the two absconding accused on 7-2-75- nor had the two absconding accused been to the Polytechnic Institute,. Peshawar, on that date.
217. ' The requirement of section 171, Cr. P. C. Is that the witnesses are not-required to be accompanied by the Police Officers and that they are not to be subjected to restraint. Statement obtained from the witness subjected to restraint cannot be regarded as voluntary. Relevant portion from the statement of Muhammad Naeem Khan, M. I. C., Peshawar (P. W. 62) further clarifies the position.
218. "I do not remember if I was Magistrate on duty when I recorded the statement of P. W. Ihsanullah and Hawes Khan under section 164, Cr. P. C. And it may be for that reason that application (Exh. P.
219. W. 62/F) was submitted to me for binding down Ihsanullah P. W. And 'dawns Khan to appear in Court. I had the impression and still I have the impression that I had the jurisdiction to pass relevant order on the application (Exh. P. W. 62/F) of the police.
220. Q.-Do you agree that the proviso to section 171, Cr. P. C. Is attracted only if any complainant or witness refused to attend or to execute a bond as direction in section 170, Cr. P. C. ?
221. 4.-T agree, but in the instant case when the police themselves requested me to bind the said witnesses, I gathered that the witnesses had refused to execute bonds as directed in section 170, Cr. P. C.
222. Q.-Do you agree that the application on which you passed the order does not say that the witnessas have either refused to attend or refused to execute a bond as directed in section 170, Cr.
223. P. C.
224. A.-It is correct that the police had not mentioned specifically that the said witnesses had refused to execute bonds under section 170, Cr. P. C. It is also not specifically recorded in Exh. P. W. 62/F that the witnesses had refused to attend.
225. The direction to the other witnesses is found in the statement of Muhammad Iqbal Khan, M. I. C., Peshawar (P. W. 63) in the following form:- Q.-Is it correct that in respect of all those witnesses whose statements you recorded under section I 64, Cr. P. C. Applications were also moved by the police before you to bind them down for appearance in Court within the meaning of sect ion 171, Cr. P. C. ?
226. A.--I bad bound down Mian Mohiuddin witness, Amanullah, Ghazi witness, Shahzada witness, Munshi Ghulam Qadar witness, Amanullah son of Ghandal witness, Nawab Khan Taxi Driver (witness), Rahim Shah Taxi Driver (witness) and Ziaur Rahman witness. Applications for binding down the said witnesses under section 171, Cr. P. C. For appearance in Court had also been submitted by the same Police Officer who had produced the said witnesses before me for recording their statements under section 164, Cr. P. C.
227. Q.-Do you agree that in none of the applications, in which you bound down the witnesses, was even alleged that the witnesses had either refused to attend the Court or had refuse to execute a bond in terms of section 170 ?
228. A.-It is correct that in none of such applications, the police had made any specific allegation that the witness has either refused to attend the Court or he has refused to execute bond within the meaning of section 170, Cr. P. C."
229. ' As regards Nasir Ahmed (P. W. 48), the prosecution produced him in an attempt to show that P. W.
230. Ihsanullah is a creditable witness. We have elaborately dealt with the evidence of P. W. Ihsanullah and in consequence found him to have been a procured witness and thus same would be the position in respect of P. W. Nasir Ahmed. Even otherwise, the type of evidence that W. Nasir Ahmad has furnished is such that It does not inspire confidence. He has deposed that he is a Munshi in the Petrol Pump of Haji Attaullah at Charsadda and that on the day preceding the day of occurrence, Hawes Khan (a servant in that Pump) had with his permission gone with P. W. Ihsanullah who was to take two guests in his car to Peshawar. However, Hawes Khan was not produced to corroborate P. W. Nasir Ahmed from which there would be no escape from the conclusion that had Hawes Khan been produced, he would have not subscribed to what was said about him. In other words, he would have asserted that he was falsely adjusted as a witness in the case. Had similar fear not been in the mind of the prosecution, surely he would have been produced. P. W. Nasir Ahmed further stated:- "Tariq son of Azam had come to our Petrol Pump after 16/17 days of the date of murder of late Mr. Sherpao. He told me that Ihsanullah should go in hiding, as he had been instructed by Nisar Mohammad Khan accused to tell Ihsanullah (P. W.) to do so."
231. ' It will be seen that it was Tariq who had allegedly told him that Ihsanullah should go in hiding. But Tariq was not examined in this respect. It would, therefore, be obvious that his evidence is entirely frivolous and thus it will amount to circumventing the Law of Evidence, should the same be taken as worth-consideration.
232. ' According to Aurangzeb Shah (P. W. 36), Ahmad Farooq amused appellant was formally arrested by him on 26-3-75 in this case, where Car No, KAK-52-Datsun (Bah. P. W. 38/1) was taken into possession on 19-2-75 by Masud Khan, Inspector, Special Branch, Peshawar, vide recovery memo (Bah. P. W. 38/A). As such the oar in question at the time when it was taken into possession was not a ease property and its recovery by the police uncer the circumstances is not in accord with the provisions of law. Following from the statement of Aurangzeh Shah illustrates the point with regard to the recovery as well as the confessional statement of Ahmad Farooq accused appellant which shall be discussed in the succeeding paragraphs :- "On 21-3-75 during the interrogation Ahmad Farooq made some disclosures about this case. I, recorded the statement of Ahmad Parooq. On 26-3-75, I had recorded in the Zimni the disclosures which Ahmad Farooq made in connection with this case on 21-3-75 I did not take Ahmad Farooq accused to the Magistrate for recording his statement on 21-3-75, because he was by then not disclosing the whole facts."
233. ' As regards the recovery from the house of Ghazi Amanullah Khan of Arms and ammunitions (Bah.
234. P. W. 50/1 to Exh. P. W. 50/7) consisting of stenguns, rifles and pistols etc. Taken into possession, Abdul Wakil Shah, M. I. C , Charsadda (P. W. 54) who prepared the recovery memo. (Bah. P. W. 50/A) stated :- "It was Maghrlb prayer time on 13-3-75. I was directed by Assistant Commissioner, Charsadda,.
235. That I would have to accompany a police team which was arriving from Peshawar. . . . At about 9.30 or 9-45 p.m. On that very night I was formed by the Special Team that I vu required to come to the Bungalow of D. S. P., Charsadda. The D. S. P., Charsadda also joined us. Tamash Khan A. L-G. And Niaz Gul S, P. Then took me to a side and told me that during the interrogration, Nisar Mohammad Khan accused had made certain disclosures in respect of some arms and ammunitions which had been enstrusted by him (Nisar Mohammad Khan) to Ghazi Amanullah of village Chamyaran."
236. ' The recovery of the arms and ammunitions is not controverted from the possession of Ghazi Amanullah Khan. Ghasi Amanullah Khan has, however, not been produced. As such the recovery from his possession of certain arms and ammunitions does not connect Nisar Mohammad Khan accused appellant with this recovery. It may also be noted that the recovery was made on 13-3-75, whereas Nisar Mohammad Khan accused appellant was M arrested on 23/24-2-75 and his confessional statement was recorded on 27-3-75. It follows from it that the alleged recovery of the arms and mmunitions attributed to him cannot be said to be the result of disclosure allegedly made by Nisar Mohammad Khan accused appellant in his confessional statement.
237. ' The evidence of Amanullah (P. W. 52) inasmuch unworthy of reliance just as the evidence of Ihsanullah aforementioned for the following reasons: ' As regards Amanullah (P. W. 52), it is conceded that while in police custody like many other witnesses, he made his statement before the police after a protracted period. In this respect, he stated :- "After I was taken in custody I was taken straight to Warsat where I remained for one month whereafter I was brought to Peshawar and my statement was recorded by the police in the Special Branch_"
238. ' The learned trial Judge, while dealing with his evidence, recorded the following from his statement in the impugned judgment :- ' The witness farther said that whether it was on the same day on which the late Mr. Sherpao was assassinated or a day earlier, but at a later stage he corrected him elf by stating to mean that it was on the same day on which the late Mr. Sherpao was assassinated, that the said two persons (photo.. Graphs Exh. P. W. 23/i and Exh. P. W. 23/2) came to the said factory and asked him to make arrangement for a taxi car which they required. As the witness had once seen them with Nisar Muhammad Khan accused, therefore, he told them that he would bring a taxi car for them. Witness further stated that he then went to the Taxi Stand.
239. ' A look at what we have underlined* will at once bring one to the conclusion that his evidence is of dubious nature and hence not worthy of credence. Had the two absconding accused visited him, surely he would never have wavered to say that it was on the day of occurrence or a day earlier that they had come to him. In a case of this nature, he could not be given any allowance when :- "At a later stage he corrected himself by stating to mean that it was on the same day on which the late Mr. Sherpao was assassinated that the said two persons came to the said Factory."
240. ' For it was a famous incident the news of which had spread far and wide in the country like a fire in the jungle. Therefore, had the two absconding accused really called on him on the day of occurrence, surely he would have, by the association of his imagination, kept it alive in his memory and stated extempore that their visit had taken place exactly on the same day. Fortunately, he is not a mental case like P. W. Mian Mohibuddin in order that he should be shown any indulgence and accommodate him in what he has faltered. P. W. Amanullah further stated in his evidence that when he went to the Taxi Stand in order to bring a taxi car for the two absconding accused, he could not succeed in this respect, as no taxivala was prepared to come with him. This piece of his evidence would appear to be as much fantastic on which how much may be said, the less ii would be. It is entirely against the common experience that he was unable to hire a taxi-car, as at the Taxi-Stand, none of the taxi-drivers, according to him, was prepared to go along with him. Even this witness has belied and disgraced P. W. Rahim Shah taxi-driver and for that matter all subsequent witnesses, namely, P. Ws. Faqir Muhammad, Muhammad Hussain, S. H.
0. Murad Khan, F. C. Mir Rehman etc. In this respect, this is what the learned trial Judge has recorded from his statement in the impugned judgment:- "The witness then offered his Asar Prayers and then the aforementioned two persons (Amjad and Anwar absconders) also came back to the said Factory in a red colour car."
241. ' It will be seen that on his own showing, the two absconding accused were able to procure a car at their own level and thus there was no need for Miens in italics) them to have looked for him (P. W. Amanullah) to hire a taxi-car for them, for under the circumstances, they would have gone in that car to their destination, especially when the witness told them that he was unable to arrange a taxi-car for them. Even otherwise, he is the type of witness whose evidence does not inspire any confidence. Wells on circumstantial Evidence, 9th Edition says :-- "Concealment, disguise and flight are instances of a subsequent conduct. These several acts in all their modifications are indications of fear ; but it would be harsh and unreasonable to interpret them invariably as indications of guilty conscience, and greater weight has sometimes been attached to them than they have fairly warranted. Doubtless the manly carriage of integrity always commands the respect of mankind and all tribunals do homage to the great principles from which consistency springs ; but does not follow, because the moral courage and consistency which generally accompanied the consciousness of uprightness raise a presumption of innocence that the converse is always true."
242. ' Visualizing the state of mind of the culprits after allegedly committing the offence, they could hardly lose time so as to contact Amanullah P. W. For arranging a car for them for their flight. As Amanullah says that after he offered Asar prayers. The fugitives came again to him in a red car and asked him if he had arranged the car for them. This on the face of it is incompatible with the conduct of a culprit whose concern is to be off from the scene of occurrence as soon as possible.
243. The evidence of this witness is a futile attempt to introduce Ahmad Farooq accused appellant and his car in the picture. As indicated above, if the car of Ahmad Farooq could be brought upto Amanullah, it could as well be used for the real purpose. Roaming about of the culprits in such circumstances is not in accord with the conduct of a fugitive.
244. ' Similarly, the evidence of Sadiq ljaz (P. W. 15) can be discredited with equal force. The registers (Exh. P. W. 15/1 to Exit. P. W. 15/3) maintained by him as steward of the cafeteria were taken into possession by the police on 20-2-75 and his statement was recorded on the same day. The register (Exh. P. W. 15/3) for the month of February 1975, is kept blank onward from 9-2-75 by the investigating officer. As such to keep it blank for the days between 9-2-75 and 20-2-75 creates a reasonable doubt about its authenticity with regard to its maintenance in the normal course of business. Moreover, it bears no signature of the customers and to a naked eye it appears to have been written in the same ink of a ball point right from the beginning upto 9-2-75. The effort made by this witness to introduce Ahmad Farooq accused appellant as an associate of the absconding accused on the strength of his extraordinary sharp memory also commands for futility which must be ignored. Notwithstanding this position, he seems to have contradicted himself when in cross- examination, he stated that :- "Lunch is served in our cafeteria on self-service basis. Therefore, it is not possible as to who has come with whom."
245. ' But when he was asked about the dinners, he stated that:- "Dinners are served through bearers particularly after closing hours and therefore it becomes possible for me to know as to which guest has come with which student for dinner in the cafeteria.
246. ' This explanation would appear to be highly illusory and is no more than just his issuing words against words. It is indeed strange and conveys no sense that in a cafeteria lunch is served on self- service basis and dinner is served through bearers.
247. ' Before we proceed to discuss the alleged recovery of the two coats (Exh. P. W. 18/4 and Exh. P. W.
248. 18/3), we consider it necessary to examine the evidence of shaukat All (P. W. 18/), Clerk, White Tailoring House, Peshawar Cantt. To begin with, it may be observed that his appearance as - witness before the Court in the case to identify/confirm the coat (Exh. P. W. 18/3) is open to serious objection. On his own showing, he is not a tailor who had sewn the coat in question or had stitched the same. What he stated was that he was a Clerk in the said Tailoring House. To our mind, he has rediculed himself when he stated in cross-examination that "he identifies the coat (huh. P. W. 18/3) by the thread used for the replacement of the broken button and the thread originally used for fixing the botton of this Coat". It is wholly unbelievable that he would be able to identify/confirm a coat, for it is a matter of common knowledge that a clerk in a Tailoring House would no c be able to know or remember the details of the coats sewn/stitched in that House by the tailors. His job is just to issue the sewn/stitched clothes to the customers against the receipts. Under the circumstances, the evidence of this witness would be of no avail to the prosecution. It appears that in this case, the investigating agency was destined to take upon Itself the duty of satisfying the condition for the sake of condition to collect figures, but in doing so, it had cared little what would be the suitable figure. P. W. Shaukat Ali was evidently a figure fantastic by any reckoning, as he was a clerk and not a tailor whose evidence should be the authority on the subject.
249. ' Now coming to the alleged recovery of the coats (Exh. P. W. 18/4 and Exh. P. W, 18/3) We are clear in our mind that the alleged recovery of these two coats is a desperate attempt on the part of the prosecution to establish the detour of the two absconding accused from Bakhshu Bridge to Charsadda via Hindko Daman. Exh. P. W. 18/4 bears the label of White House Tailors, whereas the label from the underpocket of Exh. P. W. 18/3 appears to have been freshly torn off. The coat (Exh. P.
250. W. 1/3) bearing no label evidently was loose-fit as compared to Exh. P. W. 18/4 when it was put on by a person from amongst the audience in Court. How and from where these coats were obtained is a matter of conjectures but the circumstances under which these coats were introduced does not appeal to reason and common-sense. Why the coats were exchanged for the chaddars? In this regard, we are asked to believe that these were wet. But the chaddars must also be wet, because the witnesses from whom these chaddars were obtained were working while it was raining. How these chaddars could be warmer than the coats. If we are asked to believe that the chaddars were required by the fugitives for covering their identity, this also would not fit in with the circumstances, because darkness had already spread and the chaddars would not be required for disguise. Moreover, how the pistol quite a big thing (shown to us in Court) on the person of Anwar Bacha absconding accused could escape notice of the witnesses namely, Faqir Muhammad (P. W.
251. 23) and Muhammad Hussain (P. W. 24), Faqir Muhammad says that the taller one was wearing khaki shirt and shalwar of tetron cloth and he was also wearing a waistcoat over which he was not wearing anything. This being so, the evidence of these two witnesses does not inspire confidence.
252. Even otherwise, both of them can be conveniently termed as false witnesses. P. W. Faqir Muhammad says that while they were planting coplar sapplings in the field, it was sunset time when the two absconding accused appeared. As against this, P. W. Muhammad Hussain says that while they were planting the said sapplings, it was "Maghrib Qaza time (i,e, long after the evening)" when in the meantime, the two absconding accused approached them. This being their evidence, it would be obvious that both these witnesses are brazen-faced liars, for, by no stretch of imagination, sunset time and Qaza Maghrib time can be reconciled. Apart from this, if it is believed that they were planting the sapplings at that odd hour in the evening, perhaps it would be the first experience in the history of cultivation, for sowing plantation in the fields is attended by the farmers in daylight and not in the evening or thereafter. It would, therefore, be entirely unsafe to give any credit to the evidence of these two witnesses.
253. ' Indeed, a marvellous position has been innovated and adopted by the prosecution in regard to the absconding accused. On the one hand, we are given the impression that they were haunted by an intense fear that instead of undertaking their journey on the metalled road from Bakhshu Bridge, they-turned their faces to undertake their journey into fields in order to keep themselves concealed. On the other hand, we are given the impression that they had exhibited as high a chivalry that they were roaming about in the closed bazar of Charsadda Tehsil during the mid- night. Why should they roam about in the closed bazar during the night? Were they rustic villagere and were not aware that during night hours, police is invariably on gasht duty in the bazar. It is understandable that in no case even a clear-minded person would feel encouraged to walk in the closed bazar during the night, muchless a criminal fugitive from bus. If what has been alleged by the prosecution in this respect is accepted, it would mean that the two absconding accused had willingly courted their arrest. On this aspect of the case, the prosecution has indeed presented before the Court a dilemma the resolution of which must go against it, as it offends against the normal course of things that a person, particularly criminal minded person, should move astray in the closed bazar during the mid-night. We are, therefore, clear in our mind that the two absconding accused were never arrested during the night of 8/9-2-75 in the bazar of Tehsil Charsadda, but in order to connect with them the accused appellants as co-conspirators inter se, the prosecution has adopted this line of action against them. In so far as the fact whether or not the two absconding accused were lodged in Charsadda Jail during the days of occurrence, we do not feel concerned with the same, as what we were required to- decide was that they were arrested on the night of 8/9-2-75 in the bazar of Charsadda Tehsil which we have for the reasons furnished above, disbelieved it.
254. ' Having come to the conclusion that the two absconding accused were not arrested in the bazar on the night of 8/9-2-75, the question of the alleged recovery of the pistol and camera from the possession of the accused would not arise. In view of the circumstances of the case, it was the left- hand job of the police to have procured these things and foisted the same on the absconding accused. In so far as the camera/photo/negative is concerned, it can be said with equal force that the same was/were given to the police by Mian Mohibuddin P. W., as he was shown standing with Amjad Ali absconding accused in the photo (Exh. P. W. 16/1). Even the mark of the camera in question has not been correctly shown. The recovery memo. Exh. P. W. 32/1 shows that it was K. D. K.
255. While in fact it was found in the trial Court to be bearing the mart KODAK. It would thus be clear that there was no camera before the investigating agency while that agency was projecting it in the case. Quite apart from this position, the prosecution has not produced any evidence worth-the- name in regard to the alleged recovery of the pistol and camera Unfortunately for the prosecution, it did not care to put in the mouths of P. W. Faqir Muhammad and Muhammad Hussain, or for that matter P. Ws.- Rahim Shah driver and Amanullab, to state that they had seen the pistol and the camera in question with the absconding accused, for it were these witnesses whom the absconding accused had allegedly contacted after the occurrence at evening time. It is not unusual for a fiction-writer to miss useful and important features in a story. This would apply to the investigating agency in compilation of the present case against the accused appellants. It cannot be said that the pistol and camera were small things and thus could be con-coaled by the absconding accused in their persons. As indicated above, we have for ourselves seen the pistol in Court. It was of German-make of large site and its concealment by a man in his person would tantamount to concealing a camel in his folds. The allegations of the prosecution is that the absconding accused were on their way to Charsadda during the night Under the circumstances, it would, therefore, be idle to suggest that they might have procured these two articles in the way during the night. Viewed from whatever angle, there would appear to be absolutely nothing in the case of the prosecution to satisfy one's mind regarding the guilt of the accused> appellants.
256. ' We are now left with the alleged confessional statements of the accused appellants. But before examining the same, let us make it clear that we have not dealt with the evidence of the witnesses directly bearing upon A miad All and Anwar Bache absconding accused in order to determine their guilt or innocence in the case, but because in view of the circumstances of the case, it was absolutely inevitable for us to have dealt with the same. A look at the material brought on record will mate it abundantly clear that if we had not dealt with the evidence of the witnesses against them, it would have become quite impossible for us to have proceeded with the present appeal of the accused appellants. This difficulty was very much there before the learned trial Judge who based the convictions of the accused appellants in view of the evidence against the absconding accused. In view of these observations it would, therefore, be obvious that if in a criminal case, the guilt or innocence of an under-trial accused can be determined on the basis of the evidence against an absconding accused in the same case, the Court will be at liberty to take cognizance of the evidence against the absconding accused for the purpose of deciding the case against the undertrial accused.
257. ' Now coming to the confessional statements allegedly made by the three accused appellants from which they have retracted in the trial Court alleging that the same were extorted from them by the police by exercising upon them all sorts of mental and physical tortures which they have explained before the learned trial Judge in their statements reproduced in this judgment. To begin with, it may be observed that once the prosecution witnesses in regard to the guilt of the accused are disbelieved, its entire case will fall like a house of cards and the alleged confession of the accused from which he has retracted in the trial Court will have no evidentiary value whatever. But in the present case, not only the alleged confessions of the accused appellant cannot be used as evidence against them on this ground, but in view of the material brought on record, we are clear in our mind that the same wet not voluntary but were extorted from them by the police under duress. The learned counsel, Mufti Muhammad Idris, appearing for the State, however, vehemently raised the contention that the retracted confessions of the a accused appellants in the present case would appear to find carroboration from each other and thus worthy of reliance as evidence.
258. In this respect, he relied upon the following authorities : ' Syed Sharlfuddln Pirzada v. Sohbzt Khan and 3 others PLD 1972 SC 363, State v. Badshah PLD 1959 Dacca 226, Bhuboni Sahu v. King PLD 1949 P C 90 and State v. Minhun alias Gul Hassan PLD 1964 SC 813.
259. ' We have gone through these authorities and what we have gathered therefrom is that it has nowhere been laid down therein that the mere retracted confessions of the accused allegedly made by them would be treated as a corroborative piece of evidence to warrant the conviction, even if the said confessions would not find support from other convincing evidence. Not only this but the said authorities show that in there the confessions of the accused have been examined in the light of the evidence as well as the other Attending circumstances. We, therefore, find no force in what the learned counsel for the State has contended, because in the present case, we have come to the conclusion that the prosecution story regarding the guilt of the accused appellants is all a concocted tale manipulated against them.
260. ' We now proceed to address ourselves to the alleged confessions to show that these had been extorted from the three accused appellants under duress and would thus have no evidentiary value whatever.
261. ' As a preface to this discussion, it may be observed that in a case in which an accused admits to have made the confession in regard to his guilt voluntarily, then the trial Court will have to determine the guilt or innocence of the accused in the light of the facts and circumstances of the case. But in a case in which the accused retracts from his confession before the trial Court alleging that the same was not voluntary but was extorted from him under duress, then the task of the Court will become all the more difficult. In that event, the trial Court, in order to believe or disbelieve the confessional statement of the accused, will have to go into the question whether the accused bad faced such circumstances during the course of the investigation of the case against him as to have forced him to subscribe to the alleged confession in compliance with the wishes of the police.
262. It was in view of this background that section 24 came to be introduced in the Evidence Act in which guidelines for believing or disbelieving the confessional statement have been laid down for the Court. This section may better be reproduced : "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any Inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him."
263. ' A look at this provision will make it abundantly clear that the Legislature was aware of the maltreatment of the police with the accused persons charged for an offence. In other words, the Legislature has condemned the maltreatment of the police with the accused and for that reason has signalled a note of caution to the Court that while going into the question of the confession of the accused, it must satisfy itself whether the confession made by the accused was voluntary or it was extorted from him. It is, therefore, the statutory obligation of the Court to take into consideration the circumstances in which the accused was put daring the course of the ,investigating of the case against him before coming to the conclusion that the confession was or was not voluntary.
264. ' Having said this, we now proceed to take note of the circumstances under which the confessions were allegedly made by the three accused appellants.
265. ' It is a matter of record that in this case Asfandyar Wall accused appellant was arrested on the night between 8/9th February, 1975, Nisar Muhammad Khan accused appellant on 23rd February 1975, and Ahmad Farooq accused-appellant on 18-3-75. They are alleged to have made their confessions on 27-8-75. It would at once arouse one's instinct of curiosity -as to how it happened that the three accused appellants confessed to their guilt on even date (27-3-75). Obviously, the only hypothesis that can be furnished in this respect would be that the investigating agency of the Police Department forced them under duress to become signatories to the so-called confessions manufactured and complied by that agency, or else it does not stand to reason that the three accused appellants should make up their minds instantly to make confessions on one and the same date. It cannot be said that there exists one soul in the bodies of the three accused appellants and thus it would not be an extraordinary phenomenon that the confessional statements were synchronized on the same date. Only Justitia (the blind-folded god of justice) would subscribe to this conclusion.
266. ' Further, in regard to Asfandyar Wall and Nisar Muhammad Khan accused appellants, it is also a matter of record that they remained in the custody of the police for over one and a half month and were never produced before any Magistrate. In the circumstances, the assertion of the accused appellants that the confessions were extorted from them under duress must be taken notice of by the Court. In the case of Muhammad Hag:am Khan v. State (1), the accused was in police custody for about 25 days whereafter he was alleged to have made confession in regard to his guilt. The learned Judge, while throwing the confession as worthy of no evidence in the case, observed : "Even if there was no physical pressure on the accused, there must be extreme mental pressure on him, which the police under whose custody throughout he was, could not alleviate in any way under the circumstances of the case, but naturally have on the other hand tried to aggravate it."
267. ' In the present case, the learned counsel for the accused appellants contended that the persistent interrogation from the accused in that long period of custody is sufficient to negative the impression that these confessions were voluntary. It is further contended that in this case not only the violation of the mandatory provisions contained in the Criminal Procedure Code has taken place, but the investigating agency has further flouted and made mockery of the constitutional assurance guaranteed in Article 14 (2) of the Constitution to the effect that "No person shall be subjected to torture for the purpose of extracting evidence".
268. ' Quite apart from what has been alleged by the accused appellants against The police in regard to the maltreatment meted out to them, it is conceded that Fort Bala Hisser, by Notification dated 12-3-75, was declared sub-Jail where Nisar Muhammad Khan and Asfandyar Wali accused appellants were kept. It does not stand to reason that while in Fort Bala Hissar, the police had no access to the accused appellants, as the prosecution would have us believe in this respect. In the first place, the accused
(1) P D 1969 Pesb. 347 appellants would not get relief from the custody of the pollee until they had made the so-called confessions. In the second place, thee confinement in a proverbial place of terror as Fort Bala Hisser is itself a proof to show that they would not be exonerated until they succumb to the wishes of the police. It is simply preposterous to suggest that Mian Adam Shah (P. W. 46), Sub-Inspector of Police, was not on duty over the aecused appellants when they were lodged in Fort Bala Hisser, firstly because he was at the material time, posted at Peshawar in the Crimes Branch and thus there would be no escape from the conclusion that he must have been on duty over the accused appellants, and secondly because, on the first and last sheets (Exbs. D.A./A and D. X./B) of the Holy Tafheemul Qur'an belonging to Nisar Muhammad Khan accused appellant, he admitted to have written in his own band the Litany "Qaseeda Burda". In the circumstances of the case, we are, therefore, not prepared to believe him in his assertion that ho had written the said Litany somewhere else on the demand of a person who belonged to Tablighi Jummat. It appears that besides pressurising the accused appellants mentally and physically, the investigating agency had, also the audicity to phynotize and lure them into subscribing to the so-called confessions through a sacrosant in the person of Mian Adam Shan, Inspector of Police in the Crimes Branch at Peshawar.
269. ' In order to make sure whether it would have any psychological effect on the minds of the accused appellants by keeping them at Fort Bala Hisser, we in the company of the learned counsel for the parties visited Fort Bala Hisser with the prior intimation to Commandant of that Fort. We were taken to the cells where Nisar Muhammad Khan and Asfandyar Wali accused appellants had been kept from 12-3-75 to 27-3-75. What we observed was that these cells were in fact dungeons depicting a ghastly picture of grave in which one could not maintain his balance of mind, even if he is kept for one day, muchless for a number of days which fact is a matter of record in this case. These two dungeons are thickly dark and dingy. In view of this it is easay to imagine that the accused appellants, or for that matter any one else, would not be able to keep their staminas intact and in order to get temporal relief from this horrible situation, they would be prepared to take any course even if it would ultimately go to their detriment. In these circumstances, can it be said that the accused appellants had made their confessions voluntarily ? Our answer to this question is straightaway in the negative. In the law of confession, it is laid down that the accused cannot be expected to give evidence against him own interest unless forced. The Courts have always depricated the conduct of the police to subject the accused to mental and physical tortures for the purpose of extracting confession from them and it has been emphasised that objective appraisal must be taken by the Court trying the accused of the circumstances attending the accused during the course of investigation of the case against him leading to their confession.
270. ' In the circumstances of the case, we feel convinced that the accused appellants were subjected to mental as well as physical tortures. Uudertunately, a Senior Minister of the Provincial Government bad suffered has death in the incident. Therefore, the police cannot be expected to have submitted a report to the higher authorities that as a result of their investigation, the culprits were not traced.
271. In view of this, it would, therefore, be obvious that once the police laid their hands on the accused appellants in this case, they would not have left them excused until they were obliged to confess that they were responsible for the crime. In a case of this nature, it is a matter of common knowledge that the police must have employed all methods of physical violence against the accused appellants to agree to the making of the so-called confessions. The practice of subjecting the accused to physical violence yet to be a foregone myth in this sub-continent. In his Commentary on the Law of Evidence (Volume I, page 271), M. Monir has it to say : "The practice of putting the accused to torture was familiar to the Roman Law, and, in England, the rack was occasionally employed down to the reign of Charles I. But in 1628, on the trial of Felton for the murder of Duke of Buckingham, the Judges unanimously resolved that "no such punishment as torture by the rack was known or allowed by our Law", and no attempt has since been made to revive this atrocious practice. The practice of extorting confessions, however, still continues on the continent, while the various modes of obtaining confessions in India are too notorious to need comment and are well-known to any one familiar with the methods of Police Investigation in this country."
272. ' At the same page, the learned Commentator further says : "A threat of corporal violence is the clearest case of an inducement that excludes the confession.
273. To escape the disagreeable consequences of silence-Whip, gallows or rack-the threatened person naturally prefers to utter what his tormentors desire to hear-a confession. He trusts to chance to enable him to repudiate his untrue avowal and vindicate his innocence or perhaps, under the violent pain of rack, he thinks of nothing but the present relief from agony which his confession will gain him.
274. ' That a confession obtained by the rack or a threat of rack is inadmissible cannot be questioned.
275. Confessions obtained from slaves under the whip or a threat of the whip have al ways been excluded, and so are confessions made in fear of a mob. The "Sweat-box" of the police, so far as it may signify direct physical intimidation by starvation or otherwise, also invalidates a confession."
276. ' In the case of Nair and others v. Emperor (1), Niamatullah, J., while dealing with the confession of the accused, observed that the Court must make a deeper probe into the circumstances in which the accused has allegedly made the confession from which he has retracted at the trial. In this respect, this is what his Lordship has laid down "It is very important to ascertain, from those in whose custody the accused was, the circumstances in which the question of confession first arose, how the accused expressed his willingness to he placed before the Magistrate and his readiness to make a confession Similar questions arise as regards retraction. It is only if circumstances make it reasonable to believe that the accused voluntarily made the confession and agreed to make it before the Magistrate that an inquisitive mind can be satisfied. In the present case, the statement of the Investigating officers, made before the Sessions Judge does not betray the slightest anxiety on the part of the learned Sessions Judge to elicit any information as regards those circumstances Such of them could be ascertained from the record failed to attract his attention, For all these reasons, I am in entire agreement with (1)AIR 1933 All. 31 my learned colleague in holding that Nazir's confession is wholly nadmissible in evidence and should be excluded from consideration." We, therefore, hold that under the circumstances, the confessions allegedly made by the accused appellants in this case were extorted from the. Under duress and would thus have no evidentiary value whatever.
277. ' Having disbelieved the prosecution case in regard to the guilt of the three accused appellants, we wish to add a resume to our discussion, insofar as the salient features of the case are concerned.
278. ' In view of the evidence brought on record, it does not stand to reason that a bomb fitted in a tape-recorder was kept in a chair on the occasion. We are firmly of the view that the prosecution has introduced a case again the accused appellants highly imaginary and wholly incompatible with the physical circumstances of the case. In this respect, the following portion from the statement of Farkhanda Jan (P. W. 11) would suffice to reinforce our conclusion : "Amjad All was a student of Zoology Department entered the said Hall with a tape-recorder in his hand which he placed on a chair near the rostrum. When Amjad All absconder placed that tape- recorder on a chair some students passed sarcastic remarks uttering the word "Chamcha". In the meantime, Amjad All absconder went out of the Hall."
279. ' If really there had been a sarcastic remark as "Chamcha" (which in common parlance means puppet, lackey) passed against Amjad All absconding accused while he was allegedly placing the tape-recorder in a chair, then this would have arrested the attention of all those present in the Hall, to the exclusion of none, to witness the promiscuous happening. Curiously, however, it is abundantly clear from the evidence of the prosecution witnesses that they had never heard the slogan of "Chamcha' hooted any person, muchless that ho bad kept the tape-recorder in a chair. It is hardly necessary to say that a tape recorder is not so an in significant and negligible thing that can escape the notice of the gathering in a limited place like Hall, and particularly of those sitting in the first row. Had there been any truth in the allegation of the prosecution that a tape-recorder, in which a bomb was fitted, was lying in a chair as also that Amjad Ali carrying it was called "Chamcha" surely there would have come forward a large number of witnesses-rather all those present in the Hall -to give testimony to this effect. It is really astonishing that not a single male person was even produced from amongst those sitting in the first row (vide photo Exh. P. W.9/8).
280. Even A. S. P. Tariq. Special Security 0 cer to late Hayat Muhammad Khan Sherpa, who was admittedly present on the spot at the time of occurrence, was not produced from which an adverse inference can be drawn against the prosecution that ho had a different version of the incident than what was contrived and introduced by the prosecution in the case.
281. ' In an academic function such as in the present case, obviously those sitting in the first row would be intellectuals commanding the affection and respect of those attending the function. Not only this but the prosecutio withheld to appear in the witness box a good number of persons who had sustained injuries in the incident as a result of the blast. In these injured persons were included prominent figures like Maulvi Noorul Hag, Dean of the Islamiat etc. It is also a matter of record that high ranking Officers of the University such as Azam Jan Khan, Administrative Officers etc. Wore arrested in connection with the incident. Azam Jan is shown to be present with Dr. Munawar Khan.
282. Barring the evidence of Dr. Munawar Khan P. W. ,u who has not subscribed to what has been alleged by the prosecution, the Court is deprived of all the aforesaid persons. The failure of the prosecution to produce them in the witness-box to depose about the occurrence would clearly clinch the matter against the prosecution that had they been produced they would not have supported its case in the manner alleged by it. In other words, we are firm in our view that in order to suppress the actual and true account of the occurrence, the prosecution had the audacity to keep the abovesaid important persons away from appearing in the witness-box. The reason in this respect is obvious and meets the norms of logic. They would be undoubtedly men of status and high integrity and the prosecution could not oblige them to depose falsely according to its wishes, because they could not be given that improper and unfair treatment as the investigating agency had it in the case of almost all the other witnesses. We regret to place it on record that the prosecution eliminated those essential and important persons to take part as witnesses in the proceedings before the trial Court. In the circumstances, there was no justification for the prosecution to have adopted this line of action. We are, therefore, clear in our mind that in view of the failure of the prosecution to produce the said persons, whose presence in the lap of the spot is not denied by the prosecution, the occurrence has not taken place in the mariner alleged by it. To be more clear and exact, the explosion in the unfortunate incident had never taken place from within the tape-recorder allegedly lying in a chair. Or else there would have been an overwhelming evidence of an unimpeachable character in support of this assertion.
283. ' What we have gathered as a result of our careful review of the evidence in the present case is that the investigating agency proceeded to base its case against the accused appellants on presupposition. In this respect, we are fortified by the fact that the investigating agency has not been able to show the source on the basis of which it had charged the accused appellants in the present case. Thereafter, the said agency managed to pickup/ procure witnesses and trained them in what was suggested to them by that agency.
284. ' It does not make any sense that a spare chair was lying roundabout the spot in the Hall on the eve of the function and in the said chair the incriminating tape-recorder had been planted. If this theory be accepted, then the persons responsible for arranging the function would not have kept the chair idly but for a specific purpose. But the prosecution has furnished no explanation in this respect, and thus there would be no escape from the conclusion that the incriminating tape- recorder was never kept in a chair. In the absence of any such explanation, the other theory would be that the culprit had himself brought that chair for planting in it the incriminating tape-recorder.
285. Had there been any such attempt on the part of the culprit, obviously it would not have escaped the notice of all the inmates assembled in the Hall. But there is not an iota of evidence in this respect. On this score also, the prosecution case goes into mystery. Even the medical evidence is in direct conflict with the case of the prosecution. The evidence of Dr. Major Syed All Shah (P. W. 40) is that late Hayat Muhammad Khan Sherpao had sustained injuries in front of his body to the left. This would mean that the bombe had been placed in-between the rostrum and the speaker, and thus it would be absurd to suggest that in between the speaker and the rostrum a chair was lying from which a blast occurred. On this score also, the theory that a chair containing in it the incriminating tape-recorder loses its existence. There is yet another objection which can be raised against the case of prosecution that the incriminating tape recorder had been kept in a chair. If at all this had been the case, the deceased would have sustained injuries on the upper part of his bodo and not from his shoe/foot to head. Quite apart from this position, there was caused a big hole in the carpet and also the right pedestal of the rostrum facing late Hayat Muhammad Nhan Sherpa was found broken into pieces as a result of the blast. We are, therefore, unable to lay our hands on any logical proposition, which would lend support to the fact that the blast had occurred from the chair.
286. It is noteworthy to mention that the hole in the carpet was found to have blackening around it and thus it would be obvious that the bomb was lying on the carpet in view of the fact that before explosion a bomb ignities as a result of which the place where it was lying becomes blackened by the flames/ flashes. In view of this, we do not see as to how would it be that the bomb was not lying on the carpet spread on the ground especially when notice Is taken or the fact that hole caused in it as a result of the blast was found signed. The hole in the carpet would thus be the original place where the bomb had been planted, and any other view taken to the contrary would go against the natural position in the circumstances of the ease. For all these reasons, it would, therefore, be manifestly clear that the blast bad occurred from the carpet spread on the ground and not from any chair.
287. ' Quito apart from what we have found in the evidence of the wit nesses bristling with contradictions, discrepancies and exaggerations, it is eminent' clear from the evidence of many witnesses-and there is nothing I rebuttal of what they have alleged against the prosecution that firstly the were not inclined to give evidence in the case and for that reason they we kept by the police in custody continuously for a number of days and who they were forced to give evidence, even then they were kept in custody until they appeared in the case before the trial Court. The law has no countenanced this course of action adopted by the police against the witnesses in the case. Needless to emphasize that in criminal cases, a witness has to be assigned a privileged position. But the police has disregarded it in the present case. In view of this conduct of the police with the witnesses, we are, therefore, left with no option but to hold that by detaining them for a long period from the date of their taking into custody until the date of their appearance before the trial Court, the prosecution had kept them and severe mental pressure to give evidence as tutored to them by it. In the circumstances, we take a serious view of the conduct of the police to have kept the witnesses in custody for a long period, as it virtually amounts to their illegal confinement under the direct care of the police and thus it would be highly imprudent to place any reliance on their evidence even on this ground, as under the circumstance, their evidence would not be the evidence, of free and independent witnesses. In regard to the confessional statements of the accused appellants, we have suffiliently dealt with the same. However, we regret to observe that the treatment meted out to the accused appellants, while they were in police custody was an act of wanton assault directed against the sanctity of human dignity which is impermissible in a civilized society.
288. ' The result of the above discussion is that the case against the accused appellants Is not proved beyond reasonable doubt. Therefore, their convictions and sentences are set aside. They are acquitted and shall be set at liberty if not required in any other case. The car of Ahmed Farooq accused appellant shall also be returned to him.