' On the day of occurrence Abdul Sattar, Aftab Ahmad and Ziaur Rehman, appellants herein, while riding on a motorcycle were intercepted by Abdul Ghafoor Khan, S.H.O. Police Station, Kulachi, who alongwith other Police Officials was present near Adda Garrah Jana in connection with his patrol duty. On suspicion he searched the appellants and pursuant thereto recovered 3 hand-grenades, one detonator and a pistol from the possession of appellant Ziaur Rehman. On report of the incident, a case under sections 4/5 Explosive Substances Act, 13 A.O. Read with section 7-A(ii) of the Anti-Terrorism Act was registered against them, vide F.I.R. No.50 dated 9-4-2002, Police Station Kulachi.
2. After their arrest and interrogation, they were produced before the Superintendent of Police for recording confessional statement but it was only appellant Ziaur Rehman who made confessional statement whereas the remaining two declined to make any.
3. On completion of investigation, the accused were sent to the learned Judge, Anti-Terrorism Court for trial who on its conclusions sentenced them to 5 years R.I. With a fine of Rs.10,000 or in default to further undergo 2 years S.I. Under section 7(i) of the Anti-Terrorism Act, 1996, vide his judgment dated 10-2-2003. Hence Criminal Appeals Nos.13 and 14 of 2003 which are disposed of by this single judgment..
4. The learned counsel appearing on behalf of the appellants contended that the appellants were confined in custody of Police even before the date of occurrence; that the evidence of recovery is not supported by any independent evidence and that the confessional statement being a result of inducement threat and coercion is not worthy of reliance.
5. As against that, the learned D.A.-G. Appearing on behalf of the State contended that the evidence of recovery being supported by the confessional statement of one of the appellants is sufficient to warrant conviction, therefore, the learned Judge Anti-Terrorism Court has rightly recorded conviction of the appellants by placing reliance on the prosecution evidence.
6. A perusal of the evidence on the record would reveal that appellant Abdul Sattar was in custody of Police ever since the first or second week of March of 2002. According to P.W.4 who runs the business of lending motorcycles on rent, appellant Ziaur Rehman hired a motorcycle from him on the 3rd day of 'Edul Azhaa' which fell somewhere on 24th or 25th February, 2002 and after 15 days of this incident, he learnt that the said appellant has been arrested by the local Police. This P.W. Also stated that he entered the time and date of renting out of motorcycle to the appellant in a register set apart for the purpose which was seized by the local police in connection with the investigation of this case. The Investigating Officer also affirmed the maintenance of such register and its seizure by him from the P.W. The production of this register in the Court was quite relevant for the purpose of knowing the date of renting out of the motorcycle to the appellant and his arrest but it is not understandable why this register was withheld by the prosecution. In any case, its non-production will give legs to the defence version to stand upon and prove that they were in fact, arrested long before the date of the alleged occurrence.
7. A look at the order dated 8-4-2002 of the learned Additional Sessions Judge passed on a bail petition moved by the said appellant on 13-3-2002 would show that he was alleged to be in the custody of police. Though in their written reports submitted in the Court, the S.H.O. Of the.
Concerned Police Station denied to have taken the appellant in custody, all the same it appears that he with the other two appellants was in their custody and it seems that when they realized that it is not possible for them to keep their custody secret and detain them any further, they resorted to this hoax by concocting this case and thus showed their presence at the alleged date and the spot of occurrence alongwith the incriminating material. The fact that the registration of the instant case coincided with the dismissal of the bail petition moved by the appellant Ziaur Rehman in view of the reports of the S.H.Os. Alluded to above, creates serious doubt as to the genuineness of these recoveries. It also does not appeal to common sense that an accused who cried hoarse for his release from the shackles of Police custody will of a sudden spring from a no man's land and ride before the same police with 3 hand-grenades alongwith a detonator in a bag in this hand and a pistol in his pocket.
8. Another co-incidence which sets the Court on its guards and constrains it to scrutinize the evidence against the appellants with much greater care and circumspection is that the recovery of hand-grenades from the possession of the appellants was not witnessed by any independent witness. No doubt Police Officials are as good witnesses as any other from the public but in the circumstances of the case, when the very occurrence on the alleged date and spot is highly doubtful, the recovery of the incriminating material in the absence of independent witness has to be looked askance at.
9. The other piece of evidence which has been relied upon by the learned trial Court while convicting the appellants is the confessional statement of appellant Ziaur Rehman. Though this confessional statement appears to have been recorded after fulfilling all the legal formalities but the very fact that it was recorded by a Police Officer will cast a serious doubt on its voluntariness notwithstanding its admissibility under section 21-H inserted in Anti-Terrorism Act, 1997 by Ordinance No.XXXIX of 2001.
10. How an accused when produced by one Police Officer before another Police Officer can feel free and think that now he is in safe hands and that he is no more accessible to those who are Incharge of the investigation. It is not mere the question of admissibility or otherwise of a confessional statement, it is, in fact the voluntariness or otherwise of a confessional statement before a person who can never be thought to be D independent, impartial, non-partisan and apart from those who are entrusted with the job of investigation. How an accused produced before a Superintendent of Police in a bewildered state or even otherwise can understand that a Superintendent of Police is different in his attitude and outlook from other Police Officers. How a sharp line of cleavage can be drawn between the two. Theoretically or on papers this distinction may have some existence but for an accused in handcuffs, they are chips off the same block.
11. Yet another question crops up as to why the normal and recognized course of producing the appellant before a Judicial Magistrate was not adopted. What were the exigencies necessitating the production of the appellant before an S.P. For recording confessional statement and what were the circumstances which called for a deviation from the recognized course. If a confessional statement emerged from the will and volition of an accused and was made voluntarily, why was he not produced before a Magistrate and what was, that extraordinary and unusual to warrant his bypass particularly when its recording by him could rather be above board and much more transparent. Since the decision about its admissibility in view of section 21-H' of the Act mentioned above has been left on the judicial discretion of the Court, the Court before relying upon it must see and 'satisfy itself whether the questions enumerated above have been satisfactorily answered. If theanswers are in the affirmative, alright it can be relied upon. But if in the negative as in this case, it will neither be credible nor even relevant. Needless to say that being admissible does not necessarily mean being credile.
12. When looked at in this perspective, we do not think, that the confessional statement of the appellant either can be of any help to the prosecution.
13. The sum total of what is discussed above is that the prosecution has failed to prove its case against the appellants beyond any -shadow of reasonable doubt.
14. As a sequel to what has been discussed above, these appeals are allowed, the conviction and sentence recorded by the learned trial Court are set aside and the appellants be set free forthwith, if not required in any other case.