KHAWAJA MUHAMMAD SHARIF, J.---This judgment will dispose of Murder Reference No.217/T/1998, Criminal Appeal No.753 of 1998 filed by Iftikhar Ahmad alias Khari, appellant, Criminal Appeal No.757 of 1998 filed by Muhammad Amin Sajid, appellant and Criminal Appeal No.758 of 1998 filed by Muhammad Iqbal and Abdur Razzaq appellants. They were convicted and sentenced by Judge Special Court No.2, Lahore, who vide his order, dated 31-7-1998 awarded death sentence to all the appellants under sections 3 and 6 of the Explosive Substances Act, 1908 for causing explosion in Jinnah Park, Sheikhupura and to abet and supplying of Explosive Substance material for the said bomb explosion.
2. The facts of the prosecution story in nutshell are that Maqsood Hussain S.-I.(S.H.O.), Police Station, City B-Division, Sheikhupura wrote a complaint on 28-8-1996, to the Duty Officer, stating therein that at about 2-30 p.m. He alongwith Mukhtar Ali S.-I., Salamat Ali S.-I., Abdul Majeed, H.C.771, Abdul Sattar C/166, Bashir Ahmad C/789 and Fayyaz Ahmad C/278, was present at Sargodha Road on the official Vehicle being driven by Mehboob Alam C/1709, when he received an intimation that in Jinnah Park opposite Liaqat Memorial High School, Sheikhupura, bomb has been exploded. He alongwith all the officials immediately rushed to the spot where several persons were gathered at Main Gate of Jinnah Park. Pervaiz Akhtar F.C. And Abdul Ghaffar F.C. Were also present there and they had caught hold of Abdur Razzaq accused/appellant. On enquiry by the S.H.O. Abdur Razzaq accused/ appellant told him that he and Iftikhar alias Khari accused/appellant were sitting in the plot and Iftikhar accused/appellant had placed explosive material in a shopper bag and they were about to go out, when bomb was blasted. He was caught hold by the police officials with the help of the people while Iftikhar accused fled away. He further told that Muhammad Amin Lohar resident of Salamatpura Murid-Kay handed over the bomb blast material to them with the direction that they should be exploded in any where in Sheikhupura, then they will be prized with Rs.50,000 (rupees). Abdur Razzaq further told the S.H.O. That Fazla Weaver resident of Sahdrah Bala Ghomar resident of Haji Kot, Ditta Jat of Satraina, also explode bomb at the instance of India and they receive heavy amount for this act. On this complaint the present case was registered.
3. Prosecution in order to prove its case produced 13 witnesses in all, while Naveed Sikandar, S.-I.
(S.H.O.) Police Station B-Division, Sheikhupura has been examined as C.W.1, and the learned P.P. Had closed the prosecution case.
4. P.W.1 Muhammad Yaqoob, S.-I. Who has deposed that on 28-8-1996, on receipt of complaint Exh.P.A. Sent by Maqsood Hussain, S.H.O., he correctly recorded the formal F.I.R. Exh.P.A./1 which is in his hand and signed by him.
5. P.W.2 Javaid Iqbal, H.C. 1094, has deposed that on 12-9-1996, he joined the investigation of this case. In his presence, Iftikhar alias Khari accused/appellant, who was in custody,. Led the police party to the Canal Bank of Khanpur Canal and got recovered Rifle .303 P.1 and 35 live cartridges of .303 bore P.2 to P.36 and 10 live cartridges of 7-MM P.37 to P.46, vide memo. (The memo. Which was a photo copy of case F.I.R. No.662, dated 12-9-1996 under section 13 of A.O. Police Station, Sadar, Sheikhupura, was not admissible under the Qanun-e-Shahadat and pertains to another case, therefore, it was excluded from the evidence).
6. P.W.3 Shahid Inayat, S.-I. Has deposed that on 11-9-1996 he alongwith Liaqat Ali, Inspector joined the investigation of this case, Muhammad Amin Sajid accused/appellant got recovered _ from his house explosive chemical detonator and timer etc. Explosive Chemical was weighed which was about 2.50 Kgs. P.47, timer P.48 and detonator P.49, all were made into sealed parcels. The recovery memo. Was not available on the file. On the same day, Muhammad Iqbal accused/appellant led to his house at Haddoke, in police custody, and got recovered 3 timer bombs, P.50 to P.52, from a attache-case, which were taken into possession vide memo. (the memo. Was not available on the judicial file). On the same day, Iftikhar alias Khari accused/appellant led the police to Dargeahi Gil Jungle and got recovered 1 timer, P.53, detonator P.54 and explosive chemical P.55 (weight 2 kgs.).
All these articles were produced by the accused/ appellant after digging the ground from behind the mosque between 2 Kikkar trees. These were taken into possession vide memo. (which is not available on the judicial file).
7. P.W.4 is Haji Altaf Hussain who has deposed that he was working as Technician Bomb Disposal at Civil Defence Office, Sheikhupura. On 12-9-1996 at 10-30 a.m on the instruction of S.H.O, he checked 5 timers/switches, two detonators and 4 Kgs. Of High-Explosive. All these articles are used for making bomb and all this material, timer switch, detonators and 4 Kgs. Of High Explosive were alive.
8. P.W.5 Maqsood Hussain, S.-I. Has deposed that he is the complainant in this case and stated that on 28-8-1996 he accompanied with police officials was on patrol duty at Sargodha Road, when he received information of bomb blast and he reached at Jinah Park where number of persons were g,- thered. Pervaiz Akhtar and Abdul Ghaffar Constables were also present there and they captured Abdur Razzaq accused/appellant and produced before him. He interrogated Abdur Razzaq accused/appellant. He drafted complaint Exh.P.A. And sent the same for the registration of case. He took into possession, on personal search of Razzaq accused/ appellant, a rexine purse P.47 and currency notes P.48 to 51. Two railway tickets P.52 to 53, small telephone diary P.54, a ticket from Rafq Travel Service P.55, Taveez P.56, sticker P.57 and cutting of newspapers P.58, vide memo.
Exh.P.B. Thereafter, he inspected the spot and prepared rough site plan of the spot Exh. P.C. Without scale. He recorded the statements . Of the P. Ws. And handed over the investigation to Zarneer-ul-- Haq, Inspector on the same day.
9. P.W.6 Pervaiz Akhtar, H.C. Has deposed that on 2$-8-1996 at about 2-30 p.m. He was present on his duty at Jinnah Park alongwith Abdul Ghaffar Constable and they heard strong bomb blast, on which they attracted the spot and apprehended the accused/appellant before him who on his personal search, took into possession articles P.26, 27,
48. To 58, vide memo. Exh.P.B.
10. P.W.7 is Muhammad Anwar who has deposed that about 1 / 1 /2 years ago at about 3 p.m. He alongwith Muhammad Nawaz Dogar were going towards their house on motorcycle and when they reached near Liaqat High School, main road Sargodha Road, they heard a report of bomb blast. He parked his motorcycle on one side on the road and saw one person running towards Lahore side. The witness pointed out towards Abdur Razzaq accused/appellant. He and Muhammad Nawaz Dogar chased him. Several persons were also present there and two constables were also present. He caught him from front side while Pervaiz Constable caught the accused/appellant in his Jhapha from behind. Many persons gathered there and out of them two persons told them that they are from Police Department and they took the accused/appellant with them.
11. P.W.8 Muhammad Ali, A.S.-I. Has deposed that on 31-8-1996, he alongwith Zulfiqar Ali, H.C. And others joined the police investigation. Muhammad An-tin Sajid while in police custody took the police to his house at Salamatpura and got recovered .32 bore revolver P.59 from the dressing- table vide memo. (The recovery memo. Is not available on the judicial file of this case) on the next date the Investigating Officer produced the recovery memo. Exh.P.D. Which was attested by him.
12. P.W.9 is Muhammad Ishaq who has deposed that on 4-9-1996 he was sitting in the house of his friend Ejaz alias Jugee in Village Chakrani Pind where Iftikhar alias. Khari accused/appellant came there and asked Ejaz alias Jugee to help him as the police was after him. He further told him in his presence that he often used to go to India and he developed friendship with Major Sharma who trained him in bomb blasting. He further told in his presence that he had blasted many bombs in Pakistan and got money from Major Sharma as reward of those blasts. Iftikhar alias Khari accused/appellant further told him that his co--accused have been involved in bomb blasting.
Therefore, Ejaz should help him. After hearing this story from Iftikhar alias Khari accused/appellant Ejaz alias Jugee refused to help him and Iftikhar accused/appellant left the place.
13. P.W.10 Ashraf has deposed that on 30-8-1996, he was sitting in his house where Muhammad Iqbal alias Bala accused/appellant came and told him that he had acted against the Pakistan and had involved himself in Anti-Pakistan activity, therefore, the police was after him. He also told him that he used to go to India in connection with smuggling of liquor. He also told that Amin, Iftikhar, and Zulfiqar co-accused went to India where Amin met with one Major Sharma who trained them for bomb blasting. He also confessed before him that after getting training, he alongwith other accused persons blasted many bombs in Pakistan, first in Jhang, second in Sheikhupura near Civil Hospital, third in Kamoke, 4th blast was made at Kamokee near the Rehrri, 5th at Gujranwala and 6th at Rawalpindi and 7th at Sheikhupura in Jinnah Park. He further told that at Sheikhupura the blast was arranged by Iftikhar through Abdur Razzaq to whom they engaged as their servants. He refused to help the accused and told all the story on the same day to the police.
14. P.W.11 Liaqat Ali, Inspector has deposed that on 11-9-1996, Amin Sajid accused present in Court led the police in his presence to his house and got recovered from Peti lying in his house, a shopper bag containing explosive chemical one detonator and one timer and produced the same before Investigating Officer. It was weighed and was about 2.5 K.G. P.47r P.48 and detonator P.49, took into possession vide memo. Exh.P.D. And it was sealed into parcel. On the same day, Muhammad Iqbal accused/ appellant led the police to his house at Hddoke and got recovered from the room of his house from attache-case 3 timers bombs P.50 to P.52 and the Investigating Officer took into possession vide memo. Exh. P.F. On the same day, Iftikhar accused/appellant led the police party to Dargahi Gill Jungle and got recovered timer P.53, detonator P.54 and explosive chemical P.55 (2 Kg.) and produced after digging the ground from behind the Mosque between two Kikkar trees and was taken into possession vide memo.
15. P.W.12 Rai Zameer-ul-Haq, Inspector/S.H.O. Deposed that on 28-8-1996 he was handed over the investigation of this case at about 4 p.m. Under the orders of the SSP. Abdur Razzaq accused/appellant was produced before him at the spot by Maqsood S.H.O. Police Station City, B- Division, Sheikhupura alongwith other police officials. He recorded the statements of P.Ws.
Muhammad Anwar and Muhammad Nawaz at the spot. He arrested Abdur Razzaq and interrogated him. He arrested on 29-8-1996 Muhammad Amin Sajid accused/appellant from Salamatpura. On 30-8-1996 he raided the houses of other co-accused but they were not traceable. During these raids he recorded the statement of Muhammad Ashraf P.W. On 31-8-1996 he raided at Moza Haji Kot and arrested 'Allah Ditta accused and also raided at Narang and arrested Muhammad Iqbal accused/appellant. On the same day, Muhammad Amin Sajid accused/appellant got recovered 32 bore revolver from show-case lying in his room, vide memo.
Exh.P.D. Revolver is P.59. He prepared the rough site plan Exh.P.D./1 of the place of recovery and registered a separate case F.I.R. No.427 of 1996 against Muhammad Amin Sajid accused/appellant.
On 4-9-1996 during the raid he recorded the statements of Ejaz alias Jugee and Muhammad Ishaq Kamboh P.Ws. Under section 161, Cr.P.C. On 9-9-1996 he arrested Iftikhar alias Khari accused/ appellant. On 11-9-1996 at about 5-30 a.m. In the presence of other Police officials, he interrogated accused/appellants Muhammad Iqbal, Muhammad Amin Sajid and Iftikhar, Muhammad Amin Sajid in police custody led the police party to Salamatpura and got recovered timer P.48, Chemical Explosure P.47 and Detonator P.49 which were sealed into parcel vide memo. Exh.P.E. A separate case under secton 13 of A.O. And 5/6 of Explosives Act were registered vide F.I.R. No.327 of 1996 Police Station, Sadar Muridkey. . Muhammad Iqbal alias Bala accused/appellant led the police party to his house and from attache-case, three timers bomb P.50, P.51 and P.52 got recovered vide memo. Exh.P.F. Iftikhar alias Khari accused/ appellant led the police to Jungle Dargahi Gill and after digging out the ground behind a mosque between two Kikkar trees, got recovered timer, P.53, detonator P.54 and Chemical Explosive weighing about 2 Kg. Vide memo. Exh.P.G. A separate case vide F.I.R. No.445 of 1996 at Police Station Ferozewala was registered under sections 5/6 Explosives Act. On 12-9-1996 he summoned Haji Altaf Hussain of Bomb Disposal Squad and asked him to check the recovered articles.
On the same day, Iftikhar accused got recovered rifle P.59 and 35 live cartridges from the Canal Bank of Khanpur vide memo. Exh.P.H and a separate case under sections 13/20/65 A.O. Was registered vide F.I.R. No.662 at Police Station Saddar, Sheikhupura. On 15-9-1996 Haji Altaf Hussain of Bomb Disposal Squad submitted his report No.1067-73 of 1997 and he recorded his statement. On 18-1-1997 he received the file back with certain objections raised by District and Sessions Judge, Lahore, on which he amended the offences accordingly and submitted the challan against the accused persons in trial Court.
16. P.W.13 Muhammad Nawaz deposed that on 28-8-1996 at about 2/30-3 p.m. He and Muhammad Anwar were going to their house on a motorcycle and when they reached near Liaqat High School in front of Jinnah Park, Lahore Road, two persons were running from the park which was Abdur Razzaq as one of the accused. In the mean time they heard blast of a bomb in the park. Many people gathered there. He and Ch. Muhammad Anwar. Apprehended Abdur Razzaq and the other managed to escape due to rush.
17. Naveed Sikandar, S.-I. (S.H.O.), Police Station, B-Division, Sheikhupura has been examined as C.W.1 who stated that he was entrusted with the summons of Ejaz alias Jugee and Commandor Civil Defence of Sheikhupura. He reported that Muhammad Afzal, Commandor Bomb~Disposal Squad had proceeded to Australia after his retirement and there is no likelihood of his return in near future. He further stated that Ejaz alias Jugee P.W. Has been declared P.O. In case F.I.R.
No.39/95 of Police Station Narang under section 302, P.P.C. And he was intentionally concealing his appearance and there was no likelihood of his availability in near future.
18. After the prosecution evidence, learned P.P. Made statement on 10-7-1998 and gave up Abdul Ghaffar, Constable, Zulfiqar Ali, H.C. As being unnecessary, Commandor Muhammad Afzal, Civil Defence, Sheikhupura and Ejaz alias Judgee as untraceable and tendered in evidence the reports of the Bomb Disposal Commandor, Civil Defence Directorate Punjab, Lahore, Exh. PT Exh. P.K., Exh. P.L, Exh.P.M. And Exh.P.W. Respectively and closed the case of the prosecution.
19. After the prosecution evidence, the statements of the appellants were recorded under section 342, Cr.P.C. They all had denied the prosecution allegations and claimed themselves to be innocent. They stated that they would not appear in their own defence as D. W . As required under section 340 (2), Cr.P.C. They all stated that this was a false case against them. All the appellants except Amin Sajid appellant stated that they would produce defence.
20. Only Abdur Razzaq appellant had tendered in defence School Leaving Certificate Exh.DD and attested copy of report under section 173, Cr.P.C. Exh.D.E. On 22-7-1998 Allah Ditta accused also closed his defence on 22-7-1998. Iftikhar alias Khari and Iqbal appellant did not produce their defence evidence on 16-7-1998 and on 16-7-1998 the appellant neither produced any document nor any witness in their defence.
21. Learned counsel for the appellants have read before us, the prosecution evidence, the statements of the appellants recorded under section 342, Cr.P.C. And submit that the case against the appellants is .Totally baseless and the police had planted the recovery on the appellants in order to show their efficiency. They also submit that there is clear violation of section 103, Cr.P.C. In the instant case, that recoveries have been planted on the appellants. They also submit that against the present appellants under the same offences have also been registered in other Police Station within whose jurisdiction some of the appellants led to the recovery of explosive material.
They submit that on the same facts and circumstances, two cases of similar nature cannot be tried against the appellants and it would be a case of double jeopardy. They also submit that no case under sections 3 and 6 of the Explosive Substances Act, 1908 is made out against Muhammad Iqbal, Muhammad Amin Sajid and Iftikhar Ahmad alias Khari appellants. Learned counsel for the appellant Abdur Razzaq submits that Abdur Razzaq appellant was born on 1-6-198:.. According to his School Leaving Certificate and at the time of occurrence he was minor and was aged about 13 years. He submits that in such circumstances lenient view be taken while deciding his appeal.
Learned counsel for the appellants further submit that evidence of extra judicial confession given by Muhammad Ishaq P.W.9 and Ashraf P.W.10 cannot be believed because it seems to be most unnatural.
21. On the other hand, learned A.A.-G. Very candidly concedes to the proposition of learned counsel for the appellant Abdur Razzaq, that according to birth certificate Abdur Razzaq was born on 1-6- 1983 and submits that a lenient view with regard to the sentence against Abdur Razzaq should be taken. As far as, recovery of explosive material is concerned, he submits that sufficient evidence has been produced by the prosecution to prove its case against the appellants and the statements of the witnesses is corroborated with each other. He further submits that in his opinion, evidence of extra--judicial confession is not of such a type which should be believed.
22. We have heard the learned counsel for the parties at a great length and have gone through the evidence with their assistance. It may be noted here, that only Abdur Razzaq appellant was apprehended at the spot and recovery of different articles were effected from him at the time of his personal search, same is mentioned in recovery memo. Exh. P.B. Recoveries of explosive material was effected by the police on the pointation of Muhammad Iqbal, Iftikhar alias Khari and Muhammad Amin Sajid appellants and the same have been proved through Maqsood Hussain P.W.5, Shahid Inayat P.W.3, Liaqat Ali, Inspector P.W.I1 and Rao Zameer-ul--Haq, P.W.12 then about the apprehension of Abdur Razzaq, there are witnesses namely Muhammad Nawaz P.W.13, Muhammad Anwar P.W.7, Pervaiz Akhtar P.W.6 and Maqsood Hussain complainant P.W.5 then there is report of bomb blast/Threat Incident Exh.P.M. And Exh. P. N. As far as, non--joining of any person from the public as a recovery witness, in this regard, when P.W. Liaqat Ali, Inspector was cross- examined he had replied in following terms that: "no person from the public was associated with recovery proceedings throughout our way to Dargahi Jungle. I and the Investigating Officer did our best to associate the people from the general public but no body was ready to join the recovery proceedings."
23. This above said answer of Liaqat Ali, Inspector during his statement before the trial Court is a sufficient reply to the submission made by learned counsel for the appellants, that. Why public witnesses were not jointed at the time of recovery from the appellants. There is a general tendency in the public that people do not join the police investigation in such-like cases so that they may not get the enmity of the accused persons, who are involved in such-like heinous crimes.
24. As far as, evidence of extra-judicial confession which was furnished by Muhammad Ishaq and Muhammad Ashraf P.W.9 and 10, we are not going to believe it and discard the same. We may also mention here, that learned A.A.-G. Has also not relied upon the evidence of Extra-Judicial Confession allegedly made by the appellants and furnished by the above said two P. Ws. However, we are of the considered opinion, that prosecution has proved its case about the apprehension of Abdur Razzaq appellant at the spot after the blast and the recoveries from all the appellants.
However, taking lenient view about Abdur Razzaq for the reasons that he was 13 years of age as he was born on 1-6-1983 and the occurrence took place on 28-9-1996. Although, we dismiss his appeal but reduce his sentence under sections 3 and 6 of the Explosive Substances Act, 1908 to life imprisonment and also grant him benefit of section 382-B, Cr.P.C. Death sentence awarded to Abdur Razzag appellant is not confirmed.
25. Now we take up the case of remaining three appellants Iftikhar alias Khari, Muhammad Iqbal and Muhammad Amin Sajid. They were not apprehended at the spot and from them only explosive material was recovered which the prosecution has proved against them beyond any shadow of doubt. However, there is no evidence on record that some body has seen them causing explosion with Explosive Substance, so their conviction from sections 3 and 6 of the Explosive Substances Act, 1908 is set aside. Their death sentence is not confirmed.) However, they are sentenced under section 4 of Explosive Substances Act, 1908 and are awarded them 14 years R.I. Each with the benefit of section 382-B, Cr.P.C. Before parting with this judgment, we may mention here, as it, was brought to our notice, that similar nature of cases under same offences have also been registered against all the appellants and in those Police Stations under whose jurisdiction, according to the prosecution, appellants led to the recovery of the Explosive Substances Act. We may note here, that if there is any case registered against them of the similar nature, they cannot be tried for such cases. In view of the fact, that all the appellants have already faced the trial of such like cases, about which we are disposing the appeals today because if we allow those trials to proceed then it will be case of double jeopardy and will be hit by section 403, Cr.P.C. And also under Article 13 , of the Constitution of Islamic Republic of Pakistan.
26. With the above said modification, above said murder reference and criminal appeals are disposed of.
Death sentence awarded to all the appellants is not confirmed.
N.H.Q./1-156/L