1. MUHAMMAD ROSHAN ESSANI, J.--By this appeal the appellant has assailed the judgment dated 12- 9-2001 passed by the Anti-Terrorism Court No,2, Karachi Division in Special Case No,174 of 2001 whereby the respondent was acquitted. Brief facts of the prosecution case are that on 29th June, 2001 the respondent was arrested by Gulistan-e-Johar Police alongwith one Moeed Anwar and from their possession explosive substance was recovered. Resultantly, F.I.R. No,208 of 2001 was lodged at Police Station Gulistan- eJohar against them. It is the further case of the prosecution that on 4-7-2001 appellant led the police to the place of the incident of present case, where he allegedly planted a bomb which exploded. After usual investigation the respondent/accused was sent up to stand trial. The trial Court framed the formal charges against the respondent under section 7 of the Anti- Terrorism Act, 1997 read with section 3 of the Explosive Substances Act, 1908 to which he pleaded not guilty and claimed to be tried. The prosecution in support of its case examined P.W.1 JM Syeda Perveen Shah as Exh.6, P.W.2 S.I.P.
2. Abdul Ghaffar as Exh.7. P.W.3 A.S.-I. Gulsher Khan as Exh.8, P.W.4 S.I.P. Raja Sadaquat as Exh.9, P.W.5 S.I.P Adnan Khan as Exh.10, P.W.6 S.I.P. Wasim Ahmed Khan as Exh.12, P.W.7 S.I.P. Hassan As4har as Exh.13, P.W.8 Ansar Iqbal, Constable as Exh.14, P.W.9 Sher Azaam as Ex11.15(?), P.W.10 M.L.O. Dr. Preetam Jearani as Exh.18, P.W.11 S.I.P./S.H.O. Aamir Gul as Exh.19, P.W.12 S.I.P. Nawaz as Exh.20 and P.W.13 M.O. Dr. Ayaz Ali as Exh.22. The prosecution closed its side by statement dated 12-9-2001. The trial Court recorded the statement of accused under section 342, Cr.P.C. Respondent denied the prosecution case and further stated as under:-- "I am member of the Mutahida Qaumi Movement. I am not involved in this case. I did not commit any crime. I was arrested from K.F.C. Restaurant, Gulshan-e-Iqbal, after Zuhar Prayer, whileI was sitting in the Restaurant, on the simple ground that I was member of M.Q.M. Mutahida. Moid Anwar, who is shown to have been arrested alongwith me, was arrested after my arrest from Plot No,C-14, Shaheen Heights, Block-6, Gulshan-e-Iqbal, Karachi. We both were taken to the Police Station Gulistan-e-Jauhar, where explosive substance was foisted on us, and we were implicated in a concocted case. Said Moid Anwar was arrested following inquiry from me as to where and why I had gone. On my statement that I had gone to meet my friend Moid Anwar residing in Shaheen Heights, I was made to point out that flat to the police from where the said Moid was apprehended.
3. I did not point out Kachra Kundi at Chaudhry Khaliquzzaman Road to Police. I was handed over to Clifton Police, after concoction of the case of explosive substances of P.W. Gulishtan-e-Jauhar, after which this case was foisted on me alone." The respondent did not examine himself on oath as contemplated under section 340(2), Cr.P.C.
4. And also did not examine any witness in his defence. The trial Court after hearing the learned counsel appearing on behalf of the parties and evaluating the evidence acquitted the respondent as stated hereinabove. We have heard Mr. Habib Ahmad learned Assistant Advocate-General on behalf of the State as well as Mr. S.K. Jatoi learned counsel on behalf of the respondent. It will be pertinent to reproduce hereinbelow the reasons given by the trial Court in the impugned judgment for the acquittal of the respondent.
5. "Out of the first set of the witnesses, S.I.Ps. Raja Sadaqat, Adnan Khan and Wasim Ahmed were posted at the Police Station Gulistane-Jauhar. Out of them S.I.P. Adnan Khan is the person who allegedly arrested the accused alongwith one Moid Anwar on 29-6-2001, at 3-00 p.m., while he was riding on a Honda 125 cc., motorcycle, bearing Registration No,892 as suspects, in presence of Karam Ellahi and Abdul Wahid Mashirs and he allegedly recovered one shopping bag each from the accused and his companion, containing one Kilogram of explosive material, following which F.I.R. No,208 of 2001 was registered at the Police Station Gulistane-Jauhar, which culminated in a case challenged before the Special Judge, S.T.A., Karachi East. The said A.S.-I. Adnan Khan, now promoted as S.I.P. Gave evidence to that effect and produced photostat copy of the memo. Of arrest authored and duly attested by him at Ddi.P.7. He further deposed that both the arrested persons were interrogated by S.I.P. Wasim Ahmed Shah and that the accused, out of the two, confessed his involvement in bomb blast case of Police Station Clifton on 4-7-2001, and led him and Constable Zafar Adam to the Kachra Kundi situated on C.K. Road, and pointed it out to them, stating that he had kept time bomb in a white plastic bag. He also pointed out to the place of blast for which one joint memo. Was prepared by S.I.P. Wasim Ahmed Shah, for both the places, at 1-50 p.m., which was attested by him. He produced photostat copy of that memo. At Exh.P.8. The S.I.P.
6. Wasim Ahmed Shah went in line with S.I.P. Adnan Khan, attested the photo stat copy of the memo authored by him and deposed to about the interrogation of and pointation by the accused of the two places of incident, referred to in the memo. Exh.P.8. He further stated that he had informed his higher-ups, who laid information at the Police Station Clifton, following which S.I.P. Aamir Gul, S.H.O.
7. Police Station Clifton had come and formally arrested the accused in his presence and that of S.I.P.
8. Raja Sadaquat of Police Station Clifton. S.I.Ps. Raja Sadaquat and Aamir Gul have deposed to about the formal arrest of the accused from Police Station Gulistan-e-Jauhar on 7-7-2001, at 2-05 a.m.
9. S.I.P. Sadaquat produced the memo. Of formal arrest of the accused at Exh.P.6 and S.I.P. Aamir Gul proved it. The accused has not denied his arrest by Clifton Police, hence it stands established.
10. However, testimony of both S.I.Ps. Adnan and Wasim Ahmed was challenged by the defence counsel. It was suggested to them that the accused was not arrested in the alleged manner by SIP Adnan Khan, that he did not point out the places and also that the places were already known to them. S.I.P. Wasim Ahmed Shah admitted that he was in the knowledge of the place of the blast as it had come in papers. He denied the knowledge of the Kachra Kundi. He admitted that after the interrogation of the accused and his volunteering to point out the place of incident situated within the jurisdiction of Clifton Police Station he did not inform the Police Station Clifton, he did not seek permission from his S.S.P. To visit the places of incident and that he did not point and also that he did not inform the Clifton Police directly about the pointation by the accused. He as well as SIP Adnan, who is cited as the Mashir of the pointation, admitted that the latter was the main witness of Crime No,208 of 2001, registered against the accused, being its first informant, that no private person was called while departing from Police Station Gulistan-e-Jauhar or from the Clifton area, during the pointation by the accused. No reason whatsoever was assigned by S.I.P. Wasim Ahmed Shah for not calling private persons to act as Mashirs and instead citing the interested witness, S.I.P.
11. Adnan, as witness on the pointation. In the given circumstances, he becomes most interested witness, having allegedly detected and registered Crime No,208 of 2001 at the Police Station Gulistan-e-Jauhar against the accused. Police Rules and the Criminal Procedure Code require that when a Police Officer has to visit a Police Station, outside his jurisdiction, he has to seek permission of his higher officers and that before conducting any investigation in the area of other police station, he has to visit the concerned police station, make entry and then to proceed for investigation in that area. It is admitted that the investigation of this crime, registered at Police Station Clifton, was not entrusted to SIP Wasim Ahmed Shah. In that case he was not authorised to proceed to the Clifton area and to conduct investigation. He acted in illegal manner by not handing over the accused to the Clifton Police after he (the accused) disclosed his involvement in their crime. It is not the case of SIP Wasim Ahmed Shah that the accused was required at Police Station Gulistan-e-Jauhar for any investigation so much so that he was handed over to S.H.O., Police. Station Clifton on his arrival. Thus the investigation conducted by SIP Wasim Shah was illegal and it could not establish the fact of pointation under Article 40 of the Qanun-e-Shahadat Order, 1984, as he was not conducting the investigation of this Crime No,81 of 2001. It is admitted position that it was being conducted by S.I.P. Aamir GuI. The proper course for S.I.P. Wasim Shah was to hand over the accused to Police Station Clifton for investigation. He admitted that after the pointation of the accused he did not produce him before any Magistrate for recording his confession. He did not assign any reason for that lapse. In case the accused had confessed before him the guilty and had allegedly volunteered to point out the two places of the incident, it was duty of the S.I.P. To have produced him before a Magistrate for recording his confession and his failure to do so supports the defence version that the alleged pointation was a concerned concoction. It is case of the prosecution that both the places, i,e,, Kachra Kundi, pointed out by the accused, and also the place of blast, on the Khayaban-e-Iqbal, were already known to the Investigating Officers of Police Station Clifton, because SIP Hassan Asghar had prepared the memo. Of the place of incident and its sketch on the same date of the incident, i,e,, 18-4-2001, and SIP Nawaz Gondal and prepared the sketch of the Kachra Kundi on the same date, produced by him at Exh.20/A. Thus it is admitted position that the places of incident had come in the knowledge of the Police Station Clifton more than two months prior to the alleged pointation attributed to the accused. The suggestion of the defence that Gulistan-e-Jauhar Police was brought-in deliberately by the Clifton Police to avoid the legal consequences of the said knowledge, is well-founded. The pointation attributed.To the accused is neither proved on merits for want of independent evidence nor can it be established under the law for want of authority of SIP Waseem Shah and also in view of a precedent of the Federal Shariat Court, laid down in Ahmed Sher's case, reported in PLD 1995 FSC 20, wherein it has been held that the place, pointed out by an accused, being already known to police cannot be held to be a fact discovered and that such pointation is liable to be discarded. I have, therefore, no hesitation in discarding the evidence of the P.Ws. And the factum of the alleged pointation attributed to the accused, through it. Now I take up the second circumstance of the alleged identification of the accused through the evidence of P.W. Sher Azam. SIP Nawaz Gondal has admitted that on 18-4-2001, following the removal of the injured to the hospital by the SIP Adbul Ghaffar and the deceased by SIP Hassan Asghar, he started investigation and queries from the people collected at the place of incident and that P.W. Sher Azam came forward to give statement regarding the incident. He further stated that the latter had led him to the Kachra Kundi and had pointed it out to him as the place connected with the crime on the basis of which he prepared the sketch, Exh.20/A. He was cross-examined at length. He was made to admit; that he did not prepare any formal memo. Of the pointation of the Kachra Kundi by P.W. Sher Azam, that he did not mention show anywhere in the sketch the place of presence of the witness, that he did not mention in the sketch that it was prepared on the pointation of Sher Azam and that he did not obtain signature of the said witness on it as a token of his presence and pointation of that place. He, however, denied the suggestion of manipulation of the sketch and introduction of P.W. Sher Azam at the latter stage, after the arrest of the. Accused.
12. This witness failed to explain as to why he did not prepare the memo. Of the Kachra Kundi, allegedly pointed out to him by P.W. Sher Azam and also about his failure to make mention in the sketch that it was prepared at the pointation of the said witness and to indicate the place from where the said witness saw the accused leaving plastic shopper in the Kachra Kundi. Thus the apprehension of concoction, fabrication of evidence of P.W. Sher Azam and his introduction at the latter stage, shown by the defence, becomes tenable. P.W. Sher Azam supported the prosecution shivering. His conduct was noted in his deposition that from the very start of his statement till its end the said witness remained shivering and his voice was trembling. The witness had started trembling after he was administered oath. He implicated the accused by stating that he had come on a motorcycle,, occupying the back seat, which stopped near Kachra Kundi in which he kept one plastic bag and then they returned back on the same motorcycle. He stated that he was standing just opposite the Kachra Kundi on the other side of the road. He further stated that he had seen the deceased picking-up that plastic shopping bag alongwith the garbage and departing alongwith it, following which there was explosion. He also stated that he proceeded towards that direction alongwith a cart-pusher, identified the deceased to be the same, who had picked the garbage from the Kachra Kundi and that at the instance of his companion, the cart-pusher, he contacted the police officer, narrated the facts to him and later on pointed out Kachra Kundi to him. He further stated that after that pointation he went to his village in N.-W.F.P. For few months and on his return, he was called at the police station and was shown the accused at the Police Station and then he was made to identify him in presence of a Magistrate in the Central Prison, Karachi. He also identified the accused in the Court and owned his photograph on the memo. Of the identification test produced by Miss Syeda Parveen, Vth Judicial Magistrate, Karachi South. In her evidence, Miss Syeda Parveen deposed about the holding of the identification test of the accused inside the Central Prison, Karachi, after the Jumma Prayer, after 2-30 p.m. She produced letter of the Investigating Officer addressed to her for conducting the identification test at Exh.P/1, another letter of the Investigating Officer addressed to the Administrative Judge, containing directions of the latter to conduct identification test of the accused inside the Central Prison, Karachi, at Exh.P/2, and the memo. Of the identification test at Exh.P/3. She deposed that she had duly conducted the identification test of the accused through Sher Azam. She further stated that the said Sher Azam had disclosed that the accused was the same person who had kept the shopping bag in the Kachra Kundi, which stated that the accused had complained to her that he was shown to the witness prior to the identification test and that the said witness had shaken hand with him. She admitted in cross-examination that the accused had made the complaint earlier but that she mentioned it in the memo. In the last. This sole allegation on the part of the accused is sufficient for discarding evidence of the identification test. This complaint of the accused is further borne out by the abrupt statement of Sher Azam that he was taken to the Police Station and the accused was shown to him by the Investigating Officer. The Magistrate did not conduct any inquiry regarding the complaint of the accused before holding the identification test. She ought to have conducted inquiry which she did not. On this point alone the identification test is nullity in the eye of law. Not only identification test, Exh.P/3. Is written in three inks, one is with blue ball pen, the other portion is written in green ink and its third portion is written in black ink. She admitted that the columns on the top of the memo. Regarding of the Investigating Officer, the accused and of the witness and his address were written by the Sub-Inspector Aamir Gul in black ink. She further admitted that first four lines in English are photostat copy. At only one place, i,e, the number at which the accused took position in the dummies, was black in the photo stat which was filled with blue ink as 9th. After those three sentences in the photostat, the narration by the Magistrate in the blue ink starts up to end whereafter the LTI of the witness is affixed. After that the endorsement of the Magistrate 'SRO&AC', her signature, date and her name under it, the note regarding the complaint of the accused, her second signature and the date under it, are in the green ink. She could not explain as to why she used two different inks in the memo. She did not state that ink in the ball pen had exhausted so as to justify use of the different ball pen containing different ink. She also did not explain as to why she did not fill the gaps on the top and extreme right side of the memo. And also of getting them filled by the Investigating Officer in the black ink. It shows that the Investigating Officer had played a great part in the identification test and the Magistrate appears to have acted under his influence. Thus the identification test was not held in transparent, fair and legal manner. The accused is shown to have been arrested by Gulistan-e-Jauhar Police on 29-6- 2001, whereas the identification test was held on 10-8-2001 i,e, after one month and 10 days of his arrest. During that period the accused was kept at the Police Station Gulistan-e-Jauhar for 8 days and thereafter he was in custody of Clifton police for quite some time. The I.I. Did not care to hold the identification test brought the witness while he was in police custody. For that he as well as the witness have come with the explanation that the latter had gone to his village for more than 2-1/2 months and that on his return, the identification test was held. I have already mentioned above that truth slipped from the lips of the witness when he stated that on being located he was taken by the Investigation Officer to the police station and the accused was shown to him. For all these reasons, the identification test cannot be held to have been proved beyond doubt. I have, therefore, no hesitation in discarding it. The witness Sher Azam stated at the trial that he had seen the accused keeping white shopper in the Kachra Kundi. If this be held to be true, then also there is no evidence on the record to show that the said shopper, which was placed in the Kachra Kundi, contained time bomb in it. It is on the basis of the alleged confession of the accused before police and latter pointation of that place, attributed to him, that the said shopper and he himself are sought to be connected with the crime. Following the admission on the pointation, as mentioned above, the accused was not produced before any Magistrate for recording his judicial confession to support his actions judicially. The pointation by the accused has already been held to be inadmissible in evidence for the reason that the said place was in the knowledge of the police more than 2-1/2 months of the alleged pointation. The confession of the accused before police is inadmissible under Article 38 of the Qanune-Shahadat Order, 1984. It is, therefore, that the prosecution have not been able to prove that the shopper which accused is alleged to have put in the Kachra Kundi, contained time bomb. Sher Azam, witness is a chance witness as he has admitted that he roams about for seeking work of boot polish and that he has no permanent or temporary shop by the side or in front of or opposite the Kachra Kundi. Attempt was made by the Investigating Agency to prove him a natural witness by the attributing to him a narration in his 161, Cr.P.C. Statement that he has a temporary shop of boot polish opposite the Kachra Kundi since 5/6 years. This contradiction has been proved through Investigating Officer Nawaz Gondal, who is author of the statement of the former. It has already been mentioned above that while giving evidence the witness was shivering. He could not mention the time of keeping of the shop or in the Kachra Kundi by the accused or its picking by the deceased. He stated that he does not have any wrist-watch and then he exclaimed that how could he give time. His lie was exposed in the cross- examination when the witness could not give the date on which he was being examined in the Court. After this question, he immediately attempted to look at digital wrist-watch worn by him on his left wrist. When he was told to give the date from his memory, he exclaimed, how he could give a date without looking at the watch! He did mention in the examination-in-chief the date and month of the incident as 18th of 4th month. It is, therefore, that he was questioned as to what was the name of the 4th month, which he failed to state and then he was questioned as to what was the date on which he was being examined to which he made the above statement, which exposed his credibility. He was wearing a wristwatch. In order to avoid to give exact time of leaving and picking of the shopper by two different persons, he thought to escape by exclaiming that he had no wrist-watch but he was exposed when it was found tied on his wrist. It shows that he was made to crame the date of the incident by the police which in turn shows that he was a set up witness.
13. Moreover, he is a chance witness. It is consistent view of the superior Courts that a chance witness needs corroboration for being believed. In such case, his evidence cannot corroborate another tainted evidence of the prosecution. It is not unusual for the police to set up witnesses for proving their case. It is, therefore, unsafe to say the least to believe the evidence of this witness. Even otherwise, as held above his evidence does not prove that the shopper (shopping bag) allegedly left by the accused in the Kachra Kundi contained bomb which explored later on. The deceased was scavenger. He was collecting garbage and other material from various Kachra Kundis and other places. He is also alleged to have collected other garbage from the Kachra Kundi where the accused is alleged to have left the shopping bag, possibility of the bomb being concealed in some other material, which the deceased picked cannot be ruled out."
14. It is well-settled that the High Court in appeals against acquittal could only interfere if the reasons given by the trial Judge are perverse, wholly illogical, artificial and not supported by facts on record.
15. We have thoroughly examined the record and proceedings of the case and impugned Judgment.
16. Not a single circumstance has been pointed by the learned counsel appearing on behalf of the appellant nor it has been spelt out from the record that the findings of the trial Court reproduced hereinabove are perverse, illogical, unconscionable and contrary to law and facts. Consequently the appeal merits no consideration and it stands dismissed in limine.