' RUSTAM ALI MALIK, J.-- Through this judgment we intend to dispose of Criminal Appeal No,49/J of 2001, Criminal Appeal No,50/J of 2001 and also Murder Reference No,14-T of 2002.
2. Manzoor Hussain and Mukhtar Ahmed, appellants had been tried and convicted by Kh. Javed Ahmed, Special Judge, Anti-Terrorism Court No,1, Gujranwala Division, Gujranwala vide his judgment, dated 23-1-2001.
3. The brief facts are that the F.I.R. No,119 of 1998 was registered on 23-4-1998 in Police Station Sialkot Cantt., on the basis of statement Exh.P.D. Of one Dilawar Hussain, P.W.5. In his statement Exh.P.D. He had stated that he was a resident of Koobey Chak and was a shopkeeper. On the day of occurrence i,e, on 23-4-1998 around 10-30 a.m. He alongwith his wife, Mst. Rashida Bibi was present at Adda Koobey Chak for proceeding to Sialkot when Bus No,LHE-1098 came from the side of Sialkot and in which about 40/45 passengers were sitting. The complainant, his wife and also some other passengers boarded the bus (from that stop) for proceeding to Sialkot. The complainant and his wife took their seats, in the rear section of the bus. The Driver and the Conductor of the bus showing the negligent and careless attitude did not search or check any passenger. When the bus reached in the area of Rakh Marakiwal around 11-15 a.m., there was a terrible explosion in the rear section of the bus and which caught fire and the bus collided with a tree. The passengers managed to get out of the bus with great difficulty. The complainant, his wife Mst. Rashida Bibi, Shamsher son of Muhammad Shabbir, Zafar son of Barkat Ali, Muhammad Iqbal son of Allah Rakha, Muhammad Fayyaz son of Taj Din, Shabbir Hussain son of Ismail, Mst. Mumtaz wife of Amanat Ali, Mst. Parveen wife of Ishaque and Mst. Raghul Bibi wife of Naseem Javed got injured. It was alleged that some unknown persons in order to kill the people and to create panic/terrorism and to cause immense damage had placed explosive material in the bus and on its explosion the incident had taken place.
4. The statement of the complainant was recorded by the Inspector/S.H.O. And on the basis of which the formal F.I.R. Exh.P. D . Was recorded.
5. On the conclusion of the investigation the challan was filed in the Court of learned Special Judge, Anti-Terrorism, Court No,I, Gujranwala Division, Gujranwala. Both the accused were formally charged by the learned Trial Court on 26-10-2000. Manzoor Hussain, accused was charged under section 109, P.P.C. Read with section 7 of the Anti-Terrorism Act, 1997. Mukhtar Ahmed accused was charged under section 7 of the aforesaid Act. Manzoor Hussain, accused was further charged under section 109, P.P.C. Read with section 3 of the Explosive Substances Act, 1908 while Mukhtar Ahmed accused was charged under section 3 of the Explosive Substances Act, 1908. Both the accused pleaded not guilty and the prosecution was thus asked to produce its evidence.
6. The prosecution examined as many as nine witnesses.
7. P.W.7 is Muhammad Nawaz, S.-I./ S.H.O., Police Station Sialkot Cantt., who deposed that on 16-4- 2000 he was present in the premises of Police Station, Sialkot Cantt., where Muhammad Iqbal and Zafar, P.Ws. Contacted him and gave him a tip about Manzoor Hussain -and Mukhtar Ahmed, appellant concerning their involvement in this case. On 25-4-2000, he raided the house of Mukhtar Ahmed, accused and then the house of Manzoor Hussain, accused and arrested both of them in this case. According to Manzoor Hussain he had visited an Indian National named. Billa, who had given him a Chit which contained certain particulars and then he obtained a key from his wife and opened a box and produced the Chit Exh.P.B. And which he took into possession vide memo.
Exh.P.C., attested by the witnesses. He arrested the accused, brought them to the police station and prepared the challan.
8. P.W.8 is Muhammad Zahid Ikram, Magistrate. He stated that Muhammad Iqbal, S.-I.' of Police Station Sialkot Cantt. Had produced an application before him (on 26-4-2000) for recording ithe confessional statements of the accused under section 164, Cr.P.C. Mukhtar Ahmed alias Tahra accused was produced before him on 26-4-2000 at 2-30 p.m. And after completion of certain formalities (as detailed in the statement) he recorded his statement Exh.P.E./1 while the interrogation made by him from the said accused is Exh.P.E. He had appended his certificate Exh . P . E. /2 to the aforesaid statement of the accused. He stated that prior to the production of Mukhtar Ahmed, accused, the S.-I. Produced before him Manzoor Hussain, accused and he put to him certain questions and also recorded his answers thereto and which are Exh.P.F. He then recorded the confessional statement of Manzoor Hussain, accused which is Exh.P.F.1. H2 appended his certificate Exh.P.F./2 thereto as well.
9. P.W.9 is Muhammad Rashid a retired Sub-Inspector who on 23-4-1998 was posted as S.-I. Police Station Sialkot Cann. On the receipt of complaint Exh.P.D. Which was sent to him by Muhammad Munir, Inspector/S.H.O. Through Muhammad Saleem, Constable, he recorded the formal F . I. R. Exh .
P. D. /1 .
10. P.W. 6 is Muhammad Rafique, A.S.-I. Who on 25-4-2000 had accompanied Muhammad Nawaz, S.H.O. To village Molagarpur in connection with the investigation of this case. He deposed that the S.H.O. Had arrested Manzoor Hussain, accused who led the S.H.O. To his house and got recovered the Chit Exh.P.B. From a box lying in a room. The said Chit was taken into possession' by the S.H.O.
Vide memo. Exh.P.C. Attested by him. That on 26-4-2000, he moved the application Exh.P.A.
Requesting for deputing a Magistrate to record the confessional statements of Manzoor Hussain and Mukhtar Ahmed, accused under section 164, Cr.P.C. And on which Mr. Muhammad Zahid Ikram, Magistrate 1st Class, Sialkot had recorded the statements of Manzoor Hussain and Mukhtar Ahmed, accused under section 164, Cr. P.0 .
11. P W.1, P.W.2, P.W 3 and P.W.5 are the persons who wet' injured on the fateful demand explosion which had taken place in a bus.
12. P. W.1 Shamsher stated that on 23-10-1998 he was travelling by a bus bound for Sialkot and when they were passing through the area of Rakh Marakiwal, there was a huge blast in the bus which resulted in injuries to ten passengers and he was also one of the injured and since then he has been suffering from the after effects of the said explosion as there are still splinters of the bomb in his body's tissues. He stated' that as a result of the said explosion the bus was damaged and it caught fire and struck against a tree.
13. P.W.2 Muhammad Fayyaz who was another passenger on the bus deposed similarly. He stated that the explosion had resulted in injuries to many persons including himself and that the bus after getting fire went out of control and struck against a tree. He had suffered serious injuries and remained admitted in Mayo Hospital, Lahore for 18 days and then had been taking medical tretment at home for about three months.
14. P.W.3 is Muhammad Iqbal who deposed that on 23-4-1998 he was travelling by the bus which had exploded due to a bomb explosion and that besides himself, 10 other persons had suffered serious injuries.
15. P.W.5 Dilawar Hussain, the complainant who deposed that on 23-4-1998 around 10-30 a.m., he alongwith his wife Mst. Rashida Bibi boarded, a Sialkot bound bus from the bus stop of his village and that there were already 40/45 passengers in the said Bus No,LHE-1098. When the said bus reached near Rakh Marakiwal around 11-30 a.m. An explosion took place in the rear part of the bus and which caught fire and the bus struck against a tree. Many persons including himself, his wife Mst. Rashida Bibi suffered injuries and ultimately the leg of his wife had to be amputated. Besides himself and his wife, ten other passengers had also suffered injuries in the said occurrence. He deposed that the Inspector/S.H.O. Reached the place of occurrence and recorded his statement Exh.P.D. And that he had thumb-marked the same as a token of its correctness.
16. On the conclusion of the prosecution evidence, the learned trial Court recorded the statements of the accused under section 342, Cr.P.C. Both of them denied all the incriminating circumstances.
In answer to Question No,5, Manzoor Hussain, accused claimed that he had never been produced before a Magistrate. In answer to Question No,7 which related to the thumb-impression on Exh.P.F., he stated that the police officials had been obtaining his thumb-impressions under coercion and that he did not know if the aforesaid thumb-impressions were his or not. In answer to Question No,8, he stated that the Magistrate had, neither recorded his confessional statement nor it was read out to' him and nor his thumb-impressions had been obtained by him. In answer to Question No,9 as to why this case against him and why the P.Ws. Had deposed against him, he deposed that he and his co-accused were labourers and were stitching foot balls on daily wages basis and that they worked for a well-known foot, ball maker of Sialkot. He stated that the Sub Inspector/S.H.O., who used to take refreshments from a nearby stall of tea of their village, used to take foot balls from them for his children, free of cost. A few days prior to 15-4-2000 the S.H.O. Demanded from him some more foot balls but he declined and the 'S.H.O. Took it ill. On 16-4-2000, he alongwith his co-accused was sitting in the company of his co-villagers when the said S.H.O. Arrived there in a vehicle and took certain drinks. Before his arrival they were already discussing his conduct and then an argument developed between him, his co-accused Mukhtar Ahmed and the said co- villagers on one side and the S.H.O. Ort the other side in which it was alleged by them that the said S.H.O. On receipt of huge amount of bribe from Boota Ram had got him 'discharged from the present case and they had also branded the said S.H.O. As a traitor. The said S.H.O. Then reacted and started abusing them and they also paid him in the same coin. Thereupon he threatened them that he would soon teach them a lesson and would involve them in a serious case and thereafter he falsely involved them in this case. He stated that he will produce evidence in defence and will also make statement on oath under section 340(2), Cr. P.0 .
17. In his statement under section 342, Cr.P.C. ,Mukhtar Ahmed, deposed on similar lines as his co- accused Manzoor Hussain. In answer to Question No,9 as to why this case against him and why the P.Ws. Had deposed against him, he narrated the same story as was narrated by his co-accused.
However, he stated that he will produce evidence in defence and will also make statement under section 340(2), Cr.P.C.
18. After the conclusion of the defence evidence, the learned trial Court convicted both the accused in this case. Manzoor Hussain, accused was convicted under section 109, P.P.C. Read with section 7(i) clause (b) of Anti-Terrorism Act, 1997 and was sentenced to imprisonment for life and also to pay a fine of Rs,50,000 and in default to undergo R.I. For a period of two years. He was also convicted under section 109, P.P.C. Read with section 3 of the Explosive Substances Act and was sentenced to death.
19. Mukhtar Ahmed, accused was convicted under section 7(i) clause (b) of the Anti-Terrorism Act, 1997 and was sentenced to imprisonment for life and to pay a fine of Rs,50,000 and in case of default of payment of fine to undergo R.I. For a period of two years. He was also convicted under section 3 of the Explosive Substances Act, 1908 and was sentenced to death.
20. Both the accused have filed separate appeals, against the said judgment of the learned trial , Court dated ' 23-1-2001. A reference has also been sent by the learned trial. Judge for confirmation of the sentence of death awarded to both the accused/appellants.
21. In this case, not a single witness has been cited by the prosecution who might have seen the accused in or around the ill-fated bus on the day of occurrence. In fact it is not the case of the prosecution that any witness had seen Mukhtar Ahmed, accused/appellant planting the bomb in the bus. There is also no witness who might .Have deposed regarding the alleged abetment on the part of Manzoor Hussain, accused. Even the learned trial Court, in the impugned judgment, had observed as following:-- "I also hold that the statements of Muhammad lqbal, S.-I. P.W.4, Muhammad Rafique A.S.-I. P.W.6, Muhammad Nawaz S.-I./S.H.O. P.W.7, wherein the said witnesses have deposed that the accused persons while in custody had. Disclosed before them that they had acted under the instructions of the Indian Agents and for a consideration of Rs,10.000 they had planted the bomb in the bus, the said portion of their deposition is hit by Article 38 of the Qanun-e-Shahaday and so the same cannot be read in evidence. As regards their evidence regarding the recovery of Chit Exh.P.B., on the pointing out of Manzoor Hussain accused from his house, I hold that the said recovery has been proved beyond doubt but at the same time I find that the said Chit is of no avail to the prosecution and there is no indication or proof that the said Chit had been delivered to Manzoor Hussain by some Indian Agents so the said chit may not be discussed any further."
' Further, in the impugned judgment, the learned trial Judge observed as following:-- "... I, reached a safe conclusion that there remains only one issue between the defence and the prosecution and that is the judicial confession made by Manzoor Hussain and Mukhtar Ahmed accused before Muhammad Zahid Akram, Magistrate 1st Class, Sialkot P.W.8 and that the fate of this case depends on the evaluation of the judicial confession...."
22. It is thus obvious that in this case the only evidence the 'prosecution is banking upon is the.
Confessional statements of The accused recorded by the Illaqa Magistrate (P.W.8). Exh.P.B. Was also seen by us, but it provides no nexus with the occurrence or planting of explosive substances in the bus. It also does not provide any other clue pertaining to the occurrence and appears to have been fabricated rather crudely by the Investigating Officer.
23. Regarding the confessional statements of the appellants, it is an admitted fact that both the appellants had been produced before the Magistrate by the police directly from the police custody. This was in deviation of the normal course of sending a detainee to the judicial lock-up and recalling him back for recording of the confessional statement after lapse of some time. The confessional statements are, therefore, of .No evidentiary value and cannot be taken into consideration.
24. According to the Investigating Officer he got a tip from Muhammad lqbal and Zafar P. Ws. And whereafter he proceeded against the appellants. However, when Muhammad Iqbal (P.W.3) appeared before the trial Court, he did not say a word about having passed a tip to the S.-I. This was obviously a case of retracted confession and the confessional statement could not have been relied upon by the trial Court when there was no corroborative piece of evidence. The Investigating Officer appears to be a very callous person who was totally inexperienced in the art of investigation. Once more referring to the trial Court it can be said that the learned trial Court also did that care to weigh all the pieces of evidence properly and awarded death sentence to two persons in a perfunctory manner.
25. In view of what has been discussed above, the conviction recorded by the learned trial Court against both the accused/appellants on all the charges in this case cannot be legally sustained and is liable to be set aside.
26. As the charges against both the accused/appellants are not proved beyond reasonable doubt, we acquit them of all the charges and set aside the conviction recorded as well as the sentences awarded by the learned trial Court. Both the appeals (Criminal Appeal No,49/J of 2001 and Criminal Appeal No,50/J of 2001) are accordingly accepted.
27. If not required in connection with any other case, the appellants be set at liberty forthwith. The sentence of death awarded to Manzoor Hussain and Mukhtar Ahmed, accused/appellants by the learned Trial Court is not confirmed.
28. Murder Reference No,14/T of 2000 is accordingly answered in the negative.