1. ABDUL QADEER CHAUDHRY, J.-This appeal is directed against the judg--ment recorded by Special Court Sind & Baluchistan at Quetta whereby the appellant was convicted under section 3 and section 4 (a) of Explosive Sub--stances Act and he was sentenced to rigorous imprisonment of 7 years and fine of Rs. 2,000 on each count in default of payment of fine rigorous imprison--ment for one year. The substantive sentence of imprisonments were ordered to be run concurrently. The facts in brief are that the appellant alongwith Chakar Khan and Abdul Hameed were sent up by the police to stand trial before the Court under the aforementioned sections of the Explosive Substances Act. Two accused Abdul Rasool and Ghous Bux were shown as absconders. According to the prosecution the Oil Tankers belonging to different Oil Companies were shunted at the Railway Yard, Quetta. On 24th August 1974 the work of draining Kerosine Oil from the Tanker was in progress and among others two boys by name Abdul Zahir and Khan Muhammad alias Khangai were also working at the Yard. At about 5 p.m. Both these boys had seen accused Ghazi Khan in the Railway Yard and again at about 8 p.m. They found him emerging from the side of the second wagon and walking away towards the road across the Yard. When this accused reached a distance 30 to 40 yards from the wagon there was sound of explosion followed by the fire. Both these boys started running and while they passed by the Hotel of Muhammad Aslam P. W. 3 they were asked by the latter as to what has happened on which they replied that perhaps some one had kept a bomb which has exploded. P. W. Muhammad Feroz of Railway Police Station on beat duty and seeing the flames he came up and in the meantime the superior Officers of the Police and the Chief Secretary also reached on the spot. Fire Brigade Engines were called but all the four tankers were completely consumed by the fire. A S. I. Haibat Khan also reached the place of occurrence and recorded the statements of P. W. Feroz which was subsequently incorporated as first information report in section 154, Cr. P. C.'s book.
2. P. W. Moula Dad A. S. I. Explosive Inspector came on the scene and he examined the wagon on the next day. He came to the conclusion that the damage had been caused on account of explosion.
3. Accused Ghazi Khan was arrested on 26th August 1974. On 7th September 1974 an identification parade of accused Ghazi Khan was held through P. W. Abdul Zahir and Khangai in presence of P. W.
4. Khawaja Muhammad Naib Tehsildar and Second Class Magistrate. Both the witnesses identified accused Ghazi Khan on 25th September, 1974. The appellant was produced before Mr. Muhammad Hussain the First Class Railway Magistrate for a confession which he made.
5. The appellant did not plead guilty to the charge. At the trial the prosecution examined A. S. I. Haibat Khan who recorded the first infor--mation report and carried out preliminary investigation. P. W.
6. Abdul Zahir Khangai and Muhammad Aslam were examined to prove the fact of the offence as well as the identity of accused Ghazi Khan as the person found at the scene of incident immediately before the blast. The confession of the accused was proved through Syed Hassan Shah. Khawaja Muhammad was examined to prove the identification of the accused in the identification parad.
7. Inspector Mushtaq Hussain to whom the investigation case was transferred on 7-9-1974 was also examined. P. W. Feroz was not available as he was on leave but thereafter he was examined as a Court witness.
8. The accused Ghazi Khan in his statement denied the entire prosecution case and stated that on the day of incident police had arrested P. Ws. Abdul Zahir and Khangai but thereafter these P. Ws.
9. Were released and he was arrested. He attacked the identification parade on the ground that he had been shown to the witnesses at the Police Station. In regard to the confession the case of the appellant is that he was in custody of C.1. A. Police where the Magistrate had come alongwith the Police Officer and asked him to put his thumb impression on the document. The confession had been fabricated. He further stated that he had been implicated because he used to go to Railway Station to grab seats in advance for selling travelling accommodation in train. A. S. I. Haibat Khan used to take bribe of Re. 100 per week from him but thereafter the said A. S. I. Wanted that the bribe amount should be raised to Re. 150 per week which he refused to pay and the A. S. I. Had threatened him that be would not permit him to go to the Railway Station again.
10. The appellant also examined Muhammad Ishtiaq a defence witness to prove the plea of alibi and to the fact that at the time of blast the accused was with him.
11. On the basis of evidence the following points were settled by the trial Court for determination :-
(i) Whether an explosion occurred at the Railway Yard, Quetta on 24-8-1974.
(ii) Whether the explosion occurred as a consequence of us' of a bomb.
(iii) Whether the three accused or any one of them, alongwith absconders Abdul Rasool and Ghous Bux caused the explosion.
(iv) Whether accused Abdul Hameed and Chakar Khan entered into a conspiracy with co-accused Ghazi Khan and absconders Abdul Rasool and Ghous Bux to cause an explosion at Railway Yard or whether the accused and absconders acted in furtherance of common intention and aided each other to cause an explosion.
12. The learned trial Judge after assessing the evidence came to the conclusion that the prosecution had been able to prove the case against the accused. The appellant being aggrieved has challenged his conviction by way of appeal.
13. The case against the appellant rests on the following pieces of evidence :----
(i) Evidences of two P. Ws. Namely Abdul Zahir and Khangai to the effect that the accused was seen by them just before the occurrence in the Railway Yard;
(ii) the identification of the appellant by the above-named two P. Ws. In the identification test ; and
(iii) the confession of the appellant.
14. According to the learned trial Judge P. Ws. Abdul Zahir and Khangai had given consistent statements that they had seen the accused in the Railway Yard just before the blast. It is therefore, to be seen whether the statements of these two witnesses are worthy of credence and inspire confidence. There is no direct evidence in this case against the appellant and the entire prosecution case rests on the circumstantial evidence. It is therefore necessary to scrutinise the statement of P. Ws. Abdul Zahir and Khangai who are the star witnesses of the prosecution and in fact the learned trial Judge has placed much reliance on the evidence of these two P. We. P. W. 2 Abdul Zahir in his cross-examination has stated that he did not know the accused Ghazi Khan before the incident. After the blast he alongwith Khangai ran from the scene of incident towards Deba Road. After the explosion he and Khangai met Muhammad Aslam. Muhammad Aslam asked them what had happened but he did not know what he replied. In his examination-in-chief, this witness has deposed that he and Khangai were collecting the Kerosine Oil and they had come for this job at 9 and 10 a.m. On 24-8-1974. Seven Oil Tankers of ESSO had arrived and process of emptying the tankers were continued since the morning of 24-8-1974. Ghazi Khan came inside the Yard and he was strolling in the Yard. At that time Malanger an employee of ESSO was also there. At about sunset time be, Khangai and Malanger cut a water-melon. At about 8 p.m. Malanger had gone away to the office while Khangai and the witness were near the wagon. At that time he saw the accused Ghazi Khan near the other tanker when he reached a distance 30 to 40 Yards from the wagon the second wagon blasted. The witness has further stated that he did not see any other person there. He has also stated that after about 10 days he identified the accused Ghazi Khan in the identification parade.
15. P. W. 3 Khan Muhammad had corroborated the statement of P. W. 2 that he had also seen accused Ghazi Khan in the Railway Yard just before the blast.
16. The evidence of these two witnesses is to be read in the light of the statement of Muhammad Aslam. It is an admitted position that both these P. Ws. After blast met Muhammad Aslam while they were running from the Jai-wardat. Abdul Zahir has stated that he and Khangai met Muhammad Aslam and Muhammad Aslam asked them what had happened. But he did not know what was his reply. Khan Muhammad on the other hand has stated that while going he passed in front of Muhammad Aslam's Hotel but he did not meet Muhammad Aslam while going to his house.
17. Muhammad Aslam has been examined as P. W. 3 and according to him after the blast Abdul Zahir and Khan Muhammad went running in front of his house and on his enquiry they told him that some one had placed a bomb which had blasted. In his statement dated 25-8-1974 Muhammad Aslam has mentioned that two above-named P. Ws. Had stated two persons had come from the yard after placing a bomb over the Tanker.
18. Another statement stated to be recorded on 28-8-1974 of Muhammad Aslam mentions that Khangai and Abdul Zahir told him that they had kept'a bomb over the tanker. The learned trial Judge has not admitted the second statement of this witness recorded on 28-8-1974 and for sound reasons. Muhammad Aslam has stated that he had not given the second statement. The Police Officer who recorded the statement of this witness had also not admitted that the second statement of the witness was recorded on 28-8-1974. Abdul Zahir and Khangai have also not admitted that any such statement was given by them to P. W. Muhammad Aslam. But it is clear that Abdul Zahir and Khan Muhammad have not mentioned to Muhammad Aslam the presence of appellant in the Railway Yard just before the incident. In this context the statement of Court witness Feroz is also material as he was also admittedly present on duty near the place of incident on the day of occurrence. This witness has stated that he was standing at a distance of 20 or 25 yards from the Oil Tankers when he heard the sound of explosion. He had found a person coming from inside the yard and going outside the gate to enter the Depot of Oil Company. He has further stated that he did not see that person in Court. The person whom he had seen had his clothes soaked with Oil. He had seen that person after five minutes of the blast. Exh. 3/A, the first information report was recorded by P. W. Haibat Khan at his instance. According to him the person who had been seen by him was an employee of Oil Company. He has further stated that two boys were working near the Oil Tankers. The person with oil soaked clothes was arrested by the police on the very day of incident and the named of that person is Issa.
19. P. W. Khan Muhammad in his deposition has stated that he and Abdul Zahir suspected that Ghazi Khan might have stolen their spanners or screw drivers which were lying by the side of the Tanker, but this fact has not been given by P. W. Abdul Zahir. Muhammad Aslam in Exh. 3/B recorded by the Police stated that the above-mentioned P. Ws. Had told him that two persons were coming from the yard after putting bomb over the Tanker. This statement is admitted by the learned trial Judge as correct statement of Muhammad Aslam. In this statement it is clearly mentioned that two persons bad placed the bomb over the Tanker. The P. Ws. 2 and 3 have not stated this fact in their deposition on the contrary it is the case of Abdul Zahir and Khan Muhammad that they had seen only one person namely Ghazi Khan in the Railway Yard before the blast. The evidence of P. Ws.
20. Abdul Zahir, Khan Muhammad and Feroz about the identity of person who was seen by them just before the incident is neither consistent nor coherent. Muhammad Aslam who has been examined to support the evidence of P. Ws. Abdul Zahir and Khan Muhammad has also not improved case of prosecution. He has given altogether a different version. In fact he has not corroborated the statement of Abdul Zahir and Khangai. In these circumstances it is difficult to rely on the evidence of Abdul Zahir and Khangai that they bad seen the present appellant in the Railway Yard just before the blast.
21. The other piece of evidence against the accused is his identification by Abdul Zahir and Khangai in the identification test. On this count we have the evidence of Abdul Zahir and Khangai supported by the Second Class Magistrate Khawaja Muhammad. According to Khawaja Muhammad the aforesaid P. W. Had pointed out the accused Ghazi Khan in the identification test which was held on 7-9-1974. Accused Ghazi Khan was arrested by the Police on 26-8-1974 and thus the identification test was held after about 12 days of his arrest. During all this period the accused was in custody of the Police. It is the case of the accused that he was shown to these P. Ws. By the Police before the identification test was held. Apart from the fact that the identification test was held after a long delay for which no explana--petition has been advanced by the prosecution, the evidence on this score is not free from doubt. P. W. Abdul Zahir has stated that he was taken to Sadder Police Station where he was kept outside the Police Station. He has further stated that he was called to Saddar Police Station through the Police constable. Khangai bad also been taken with him for identification. The Driver of the Police Jeep had called them inside the police station for identification. P. W. Khangai on the other hand has deposed that he alongwith Abdul Zahir and Naib Tehsildar and a Police Inspector had gone to Saddar Police Station. He was asked by the Inspector to pick out that person whom he had seen near the Oil Tanker. The Naib-Tehsildar, who supervised the identification test has stated that the two witnesses were brought by Inspector Mushtaq Hussain and he alongwith them went to Saddar Police Station. Two witnesses left by him at a distance of one furlong from the Police Station, whereas he and Inspector went to the Police Station. The statement of the witnesses on the point of identification is not unanimous because Abdul Zahir has stated that he was called to Saddar Police Station through a constable and he was detained outside of the Police Station. P. W. Khangai and others have stated that he and Abdul Zahir alongwith the Naib Tehsildar and Police Inspector had come to Saddar Police Station and he was made to sit outside the gate of the Police Station. Khawaja Muhammad has stated that he left the witness at a distance of one furlong from the Saddar Police Station. Abdul Zahir and Khangai bad been brought to him by Inspector Mushtaq Hussain.
22. The Inspector Mushtaq Hussain has stated that at the time of parade he was not present near the line up. But Khangai has stated that he was asked by the Inspector to identify the accused. He has also not admitted that he had sent the Police constable to call upon Khangai and Abdul Zahir.
23. I am therefore of the view that the identification of the accused after 12/13 days of his arrest diminishes the evidentiary value of the test. It is held in 1973 P Cr. L J 263 and PLD 1970 Dacca 686 that delay in holding the identification test reduced the value of identification.
24. The next piece of evidence against the accused is the confession recorded by Syed Muhammad Hussain Railway Magistrate on 25-9-1974. The confession has been retracted and it is cardinal principle of law that the retracted confession must be corroborated by some other piece of evidence. But this piece of evidence is missing in this case. Apart from it, the confession has been recorded after a long delay i.e. Almost after a month of the arrest of the accused. The accused was in custody of the police during the period of one month. It has not been stated as to why the confession was record after a long delay, if the accused was willing to give confession. The learned Trial Judge, has acquitted the two co-accused in this case as the confession had been retracted by the accused. But it took into consideration this piece of evidence against the accused. In my humble view the confession is notinculpatory but it is exculpatory. Nowhere in the confession the accused has stated that he had committed the offence. In fact he has implicated the co-accused in this confession Exh. 8/B and has not implicated himself. The confession also contradicts the evidence of the two P. Ws. Abdul Zahir and Khangsi because in the confession it is not stated that the accused had come or ever visited the Railway Yard on the fateful day. In fact he had thrown all the burden on the shoulder of the co-accused, who have been acquitted by the trial Court. The trial Court has mentioned in para. 18 of the judgment as under :----- "In regard to Ghazi Khan he had stated that a few days before the explosion he knew about a plan in regard to explosion. He had come to Railway Station alongwith co-accused Abdul Hameed and Chakar Khan and absconders Abdul Rasool and Ghous Bux."
25. I have gone through the entire confession but there is no reference in it that the accused alongwith co-accused had gone to the Railway Station either on the day of the incident or prior to that incident. On the other hand the confession revealed that he had not visited Railway Yard at any time on 24-8-1974. It is mentioned in the confession that they had agreed to meet at about 7-30 or 8-00 p.m. In the Railway ground. It is further mentioned in it that he and Abdul Rasool stood near at a distance of 20 or 25 yards from the Tankers. Abdul Hameed stood with-loaded pistol and Ghous Bux was responsible for the explosion.
26. At the most it can be said that the appellant was in the know of the conspiracy hatched up by co- accused, but nowhere in the entire confession it is stated that he had entered into the conspiracy with the co-accused for the explosion. In my opinion he could not be prosecuted on the basis of, confession under the Explosive Substances Act. Additionally when the co-accused have been acquitted by the trial Court there was no basis for taking into consideration the retracted confession against the accused. I therefore discard this piece of evidence against the appellant for all the above-mentioned reasons.
27. The learned trial Judge has also placed the burden of proof on the accused under section 8 of the Ordinance, 1974. Section 8 of the Ordinance reads as under :--- "8. Burden of proof.---Where any person accused of having committed a scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is appre--hended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall be presumed to have committed the offence unless he can prove that he had not in fact committed the offence."
28. The learned counsel for the State has also submitted that the burden of proof was on the accused, as plea of alibi has not been established therefore the appellant was rightly convicted. In criminal trial, the initial burden is always on the prosecution in spite of the provision laying the burden of proof on the accused. If the prosecution discharges its burden of proving the case against the accused only then the burden is shifted to the defence. Three pieces of evidence have been dischssed and discarded by me. As the preliminary burden has not been discharged by the State, the burden of proof cannot be shifted on to the accused. Even the conclusion drawn by the learned trial Judge with regard to the apprehension of the accused, to my mind is not correct. According to the learned trial Judge in section 8 of the Ordinance the term "apprehension" is used in the mental sense and not in the physical sense. He has referred to Shorter Oxford English Dictionary where the word 'apprehend' has been defined in the physical and as well as in the mental sense. The word 'apprehend' in the physical sense means to lay hold upon, to seize in name of law, arrest, to take possession of, to embrace. The dictionary defines the word 'apprehend' in the mental sense as "to become or to be conscious by senses, to feel, to lay hold of with the intellect, to see, to catch the meaning of, to understand, to anticipate with fear".
29. I have not persuaded myself to agree with the learned Judge that the word 'apprehend' used in section 8 of the Ordinance has been used in the mental sense. According to the Concise Oxford Disctionary, Sixth Edition the word 'apprehension' has been defined as "Seizure, arrest, grasping of ideas, uneasiness etc." According to the learned trial Judge if the intention of the Legislature was to use word 'apprehend' in the narrow sense then the word 'arrest' would have been used. Arrest has been defined in, Ballentines' Law Dictionary" the taking, seizing or detaining of the person of another, accompanied by (1) touching or putting hands on the" person to be detained or (2) by an act that indicates an intention to take him into custody and that subject him to the actual control and will of the person making the arrest ; or (3) by consent of the person to be arrested."
30. 'Arrest' is defined in Concise Law Dictionary by P. G. Osborn "to deprive him of his liberty by some lawful authority, for the purpose of compelling his appearance to answer a criminal charge, or as a method of execution of accused," and in the Shorter Oxford English Dictionary it means "to lay hold upon or 'apprehend' by legal authority etc." The word 'arrest' connote in criminal terminology as the apprehension of a person on a criminal charge. The word 'arrest' has not been defined in the Code of Criminal Procedure. The provisions of arrest and how it has to be made are contained in sections 46 to 59. It is the general principle of construction of statutes that the Courts are to find if possible, a construction which does not involve consequences inconsistent with natural justice ; and therefore where a statute is capable of two constructions, one of which will work manifest injustice and the other, will work no injustice, it is to be assumed that the Legislature intended that which would work not injustice and the latter interpretation should be applied. When a penal statute is capable of being interpreted either in favour of or against the accused, the former interpretation ought to prevail and the benefit of the ambiguity should be given to the accused. Thus a construction which would mitigate the penalty should preferred to the other construction which would aggravate it. In the interest of an accused person stricter and narrow construction should be adopted and the Court should lean in favour of an interpretation which is more lenient or which would avoid the penalty. It is the Fundamental Principle that when the question of forfeiture of rights or the invasion of the liberty of the subject is involved the construction more favourable to the subject must be preferred.
31. PLD 1977 SC 515 that despite provision of section 106, it Evidence Act, onus in criminal cases rests on the prosecution to prove guilt of accused beyond reasonable doubt. Section 106 cannot be construed to mean that this onus at any stage shifts on to the accused to prove h' innocence or to make up for the failure of prosecution to produce evidence to establish guilt of accused.
32. It can therefore safely be said that neither under section 106 of the Evidence Act nor under section 114 Illustration(f) any presumption can made against the accused.
33. The police had arrested Malanger and Issa but thereafter they had been released. P. W. Feroz has categorically mentioned in his deposition that he had seen Issa near Vardat after the incident.
34. Neither Issa nor Malange had been examined at the trial. The presence of these two persons before and after the incident has been mentioned by one or the other witness. As they had not been examined therefore an adverse reference has to be drawn against them. It is not believable that in the presence of so many person at the time of incident only two boys had seen the present appellant and no other person had seen him in the Railway Yard.
35. For all these reasons, in our opinion the prosecution has not been able to prove the case against the accused. We therefore set aside the conviction recorded against him and acquit him. He be released forthwith if not required in any other case.