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Criminal Appeals Nos. 7 and 8 of 1975, decided on 13th April 1977.

---‑ Ss. 3, 4 (b) & 5 read with Suppression of Terrorist Activities (Special Court) Ordinance (XVIII of 1974), S. 8‑Explosive substance, use and possession of‑Fact as to how and wherefrom appellant N procured explosive substances for causing explosions shrouded in mystery- Evidence merely suggesting such appellant having access to a Government store containing such material inconsequential‑Prosecution witness stating to have overheard talk between two appellants signify ing intention to cause explosions at various places although all along present in town yet his statement recorded by police after a month of occurrence and on satisfactory explanation of such delay given either by witness himself or by Investigating agency‑Evidence of foot tracker not reliable for reasons ; (i) tracker present at time of identification parade ; (ii) no peculiarities of foot prints pointed out ; (iii) foot tracking not being a perfect science not to be much relied upon in absence of sufficient corroborative evidence‑Confession of appellant B recorded after 13 days of his arrest, retracted, and requisite questions not put to appellant as required by S. 164, Cr. P. C. to ascertain its voluntariness‑Appellant B leading police party to his house and producing some incriminating explosives and pieces of fuse coil wrapped up in cloth and such piece of cloth a portion of shalwar recovered from house of appellant N‑Appellant N also leading police party to recover one Dynamite fitted with a Detonator and other requisite accessories after digging an open land near a huge tree‑Recoveries made in presence of mashtrs and Assistant Commissioner‑Held t Evidence as regards conspiracy and actual causing of explosion not free from doubt, hence, appellant's conviction under S. 3 not maintain able‑Prosecution satisfactorily proving appellants being in unlawful possession of explosive material, recovered at their pointation, and onus lying on accused to account for such possession and such onus not being discharged, accused rightly found to be in exclusive possession and control of explosive substances for unlawful purposes and justly convicted under Ss. 4 (A) & 5.‑[Expert evidence‑Confession].

Emperor v. Santa Singh A I R 1944 Lab. 339 distinguished.

Iqbal v. The State P L D 1975 Pesh. 2301 Manzoor v. The State P L D 1973 Lab. 7141 Sharifuddin Pirzada v. Sobbat Khan and 3 others P L D 1972 S C 363 1 Mohammad Karim v. The State

P L D 1976 Pesh. 135 ; Said Begum v. The State P L D 1958 Lab. 559 ; Mohammed Sharif v. The State 1975 P. Cr. L. J. 889 ; Amrik Singh v. The Emperor A I R 1931 Lab. 50 rend Ando v. State P L p 1962 Kar. 228 ref.

Muhammad Nawaz for Appellants.

Ch. Muhammad Yousaf, Assistant A: G. for the State.

Dates of hearing s 24th, 25th, 28th, 29th, 30th and 31st March 1977.

.‑The appellants were tried at Quetta under sections 3, 4 and 5 of the Explosive Substances Act, 1908 by Special Court constituted under Suppression of Terrorist Activities (Special Court) Ordinance, XVIII of 1974, and vide order dated 11‑3‑1.975 sentence to 7 years' rigorous imprisonment and a fine of Rs. 2,000 or in default to suffer further R. I. for one year under section 3, five years' R. 1. under section 4(b) and 5 years' R. I. under section 5 of the Explosive Substances Act. They have filed separate appeals under section 7 of the Explosive Substances Act, 1908 to assail the conviction and sentence. Both the appeals will be disposed of by this common judgment as they raise identical points of law and facts.

2. The facts in brief giving rise to the judgment under appeal are that on the night intervening 10th and 11th September, 1974 an explosion was caused at Qila Saifullah Post Office. Head Constable Fazal Khan who was on rounds duty in the town alongwith two other constables witnessed the scene of offence and then proceeded to the Police Station to lodge the F. I. R. The F. I. R. was recorded by S. H. O. Noor Ahmed of Qila Saifullah Police Station. The S. H. O. after recording the F. I. R. went to the scene of offence but as it was dark night he kept a guard there. Next morning he inspected the building and found some ash lying on the outer side of the building and some pieces of explosives inside it. He took into possession the ash, pieces of explosives, pieces of broken window glass and some registers which were damaged as a result of explosion. Foot prints of one person were available at the scene of offence. He got a mould of the same prepared. The Tehsildar of Qila Saifullah suspected the appellants to be the culprits and the following morning he sent for them. They were given in custody of S. H. O. Noor Ahmed. At the time of arrest appellant Badaruddin was wearing a Chappal which was secured from him. Foot Tracker Habibullah was deputed by Assistant Commissioner, Muslim Bagh, to examine the foot prints. An identification parade was subsequently held in which both the appellants and one Abdul Raaeak participated. The Tracker found the shod foot prints at the scene of offence to be similar to that of appellant Badarudvin. Upon the inspection of the returning foot prints at the wardat Habibullah opined that after keeping the explosive material appellant Badaruddin ran back from the Post Office and fell down at a distance of 50 yards. Appellant Badaruddin was examined by the Incharge of the Rnral Health Centre, who found a scratch mark on his knee which in hit opinion, was about 24 hours old.

3. On 12th September, 1974, Noor Ahmed, was ordered by the Assistant Commissioner. Muslim Bagh to inspect the building and Roads Departments' Explosives Store situated near Qila Saifullah. The inspection of the stores revealed that the explosives consisting of gelotines and detonators etc. were far in excess than the quantity shown in the official records. In this Connection statements of Wali Muhammad and Abdul Razzak Overseers were recorded and a list of the material was prepared. Of the two overseers the former was incharge of the stores on the day of incident while the latter was his predecessor‑in‑office. One Abdul Razzak Chowkidar, who was married to the sister of appellant Nasarullah was posted at the explosives stores which raised a suspicion against appellant Nasarullah that he might be having access to these stores.

4. On 17th September, 1974 the appellants were sent to Quetta and the a investigation of the case was taken over by Malik Faiz Muhammad, Assistant Inspector‑General of Police who was assisted by Haibat Khan, A. S I. On interrogation appellant Badaruddin disclosed that the explosives were given to him by appellant Nasarullah for causing explosion at the Post Once while according to the plan he himself was to cause an explosion at the Telephone Exchange the sauce night. He also volunteered to lead the police party for the recovery of explosives from his house. Accordingly a police party along with two mashirs who were picked up from Qila Saifullah went to the house of appellant Badaruddin. From a room without a roof he produced two dynamites, four detonators and three pieces of fuse coil wrapped in a piece of cloth which appeared to be a torn piece of a "shalwar". After the recovery, a mashirnana of these articles were prepared. Later in the day the police party searched the house of appellant, Nasarullah which was situated in the Veterinary Hospital Compound at Qila Saifullah. A piece of shalwar of which a portion had been torn away was found in the room. The investigators believed that the other part of this "shalwar" must have been used in wrapping the explosives which were recovered from the house of appellant Badaruddin. It was thereore taken into possession by the Police under a mashirnama. A small tin box containing tea leaves and four pieces of jute cord (Sootli) were also taken into possession. The box was believed to have been used earlier for keeping detonators while pieces of jute cord were believed to have been used in tying together different pieces of explosives such as dynamite, detonators and fuse coil.

5. On 23rd September, 1974 appellant Badaruddin's confession was recorded by a 1t Class Magistrate of Quetta.

6. On 2nd October, 1974 appellant Nasarullah led the police party to a place situated at a distance of 2 to 3 furlongs from Qila Saifuliah wherofrom a dynamite fitted with a detonator, one extra detonator and a piece of wire was recovered at his pointation. Thereafter, appellant Nararullah led the police party to his house and produced a key. As this key g as believed to fit to the lock of the Government Explosives stores, it was taken into possession.

7. The investigators recorded the statements of witnesses on various dates and after completing the investigation obtained necessary sanction for prosecution from the Provincial Government of Baluchistan and submitted the challan to the Special Court.

8. The appellants pleaded not guilty. In their statements recorded under section 342, Cr. P. C. they explained that they were office‑bearers of two different political parties which had divergent views and therefore their entering into a conspiracy was unconceivable. Nasarullah, appellant further stated that the Tehsildar of Qila Saifullah bore a grudge against him as same time back he had insisted upon giving a reception to Khan Abdul Wali Khan despite his opposition. He also examined two witnesses in his defence. One of these witnesses stated that he was sitting in a hotel of Qila Saifullah until 10 p.m. on the night of the incident while the other witness states that he was arrested from his village, which is situated at a distance of about 5 miles from Qila Saifullah.

9. Besides confession and recoveries the prosecution has furnished testimony of several other witnesses to prove that persuant to a conspiracy between the two appellants, appellant Badaruddin caused explosion at Qila Saifullah Post Office by placing a dynamite there which was provided to him by appellant Nasarullah. Since the factum of explosion is not in controversy, the evidence led in this connection hardly needs any discussion. No evidence has also been produced to indicate the source from which appellant Nasrullah procured this material. All what has been suggested in the evidence is that Abdul Razzak Chowkidar who is husband of appellant Nasrullah's sister was posted at B & R Department's explosives stoles and as a key of the lock of the store was produced by appellant Nasruilah therefore, he must be having access to the stores. Besides this the material in the store was found far in excess than the material shown in the official record maintained by Wali Muhammad, Overseer incharge and Abdul Raazak his predecessor‑in‑office. On these grounds it seems that the prosecution formed an opinion that appellant Nassrullah procured the explosives from some unknown source and deposited them in the B & R Stores to be used for causing explosions from time to time. However, this evidence does not lead us anywhere. Inventories of the material lying in the store were also prepared by the Overseers and produced in evidence to show that there was excess amount of explosives in the stock. The lock and key of the stores was produced on or about 11th September, 1974 by the Overseer incharge to the police. Later on 13th September, 1974 the store was opened by the police in the presence of the Assistant Commissioner, Muslimbagh. It is an admitted feature in the case that the lock of the store was intact not only on the night of incident but also on 13th September, 1974 when it was opened by the police. Except the factum of the production of a key by appellant Nasarullah and that too on 2nd October, 1974 which key is said to have fitted in the lock of the stores there is nothing else on record to link appellant Nasarullah with the alleged control or access over the Government stores. The production of key much after the incident is far from sufficient to help in drawing a definite inference that appellant Nasarullah had any connection with the said stores. On the other hand the question that arises in one's mind is 'hat if at all appellant Nasarullah was so influential with his brother‑in‑law that at any time he could use the stores in a manner be liked then why did he not deposit the unused explosive thereafter his failure to cause explosion at the Telephone Exchange and instead buried it in an open place near Qila Saifullah which was subsequently dug out from there at his pointation. Consequently the fact as to how and wherefrom appellant Nasarullah procured the explosive substances for causing explosions in 8 shrouded in mystery. The evidence produced by the prosecution to suggest that he had access over the B & R Department's stores and that he used to deposit the explosive material in the stores after obtaining it from some unknown source is hardly of any significance.

10. The prosecution has next produced Bas Muhammad an employee of a Medical Store at Qila Saifullah to prove conspiracy between the appellants to cause explosion at the Post Office and Telephone Exchange of Qila Saifullah. This witness has stated in his statement that on the evening preceding the night of incident both the appellants went to his shop a1 5‑30 p.m. to purchase Jute cord (Sootli) and exchanged words with each other in his presence. Prom their talk it transpired that the same night Rppellano Badaruddin Would cause an explosion at the Post Office while appellant Nasrullah would cause another explosion at the Telephone Exchange. This witness was all the time present at Qila Saifullah but his statement was recorded by the police after about a month on 12th October, 1974. No satisfactory explanation has come forth to account for this delay. The prosecution has tried to make much capital out of the statement of this witness but the delay caused in the recording of his statement coupled with the fact that there is no explanation by the witness as to why he failed to communicate these facts to the police or to any local authority is sufficient to discard his evidence.

11. The next piece of evidence to prove that appellant Badaruddin caused explosion at the post office is the testimony of foot prints tracker. He has deposed that he had seen shod foot prints of one person at the scene of offence. The foot prints indicated that some person bad returned from the place where the explosives had been placed and while returning he fell down at a distance of about 50 feet. The mould of the foot print was prepared by the police and later on an identification parade was also held in which the two appellants and one Abdul Razzak were made to walk on soft ground. The tracker was himself present at the identification parade. He found similarity in the foot prints of appellant Badaruddin available at the wardat and in the identification parade therefore he opined that the same were those of appellant Badaruddin.

The evidence of this witness has been attacked by Mr. Muhammad Nawaz Ahmed, the learned counsel for the appellants on several grounds. His first contention is that the presence of the tracker in the identification parade which is not at all a controversial matter lasts rendered the identifica tion parade unreliable. Secondly he contends that the tracker has not pointed out any peculiarity in the foot prints of appellant Badaruddin which could be regarded as a distinguishing feature. He has also argued that the tracker was a levies employee and therefore his statement should not be relied upon. Lastly he contended that the tracker's evidence was decidedly very weak evidence and therefore it cannot be relied upon in the absence of strong corroborative evidence. The first contention of the learned counsel that the presence of tracker at the time of identification parade had rendered his evidence unacceptable has considerable force. The learned Assistant Advocate‑General has not been able to successfully controvert this criticism. The other objection that some peculiarities should have been pointed out in the foot prints of appellant badaruddin so as to make it distinguishable from other foot prints has not been supported by any case.. law and as such it is not acceptable. The next objection that tracker's evidence should not be relied upon because he was a levies employee is also without any substance. However, it is an admitted position that foci tracking not being a perfect science much reliance cannot be placed upon the tracker's evidence unless sufficient corroborative evidence is available, In this connection the learned counsel for the appellants has relied upon Muhammad Ashraf v. The State (P L J 1975 Lah. 260 (sic)) wherein the aforesaid principle has been enunciated. Since no corroborative evidence is available to support the tracker's evidence we exclude it from consideration.

12. The next piece of evidence is confession of appellant Badaruddin which was recorded at Quetta by Muhammad Hussain, a Magistrate of the first class on 24th September, 1974. In his confessional statement appellant Badaruddin has stated that be was General Secretary of Pashtoon‑khaw National Awami Party whereas appellant Nasrullah was General Secretary of National Awami Party. Both of them were on friendly terms with each other for quite sometime. For about a month before the incident appellant Nasrullah used to invite him to join hands with him for causing explosions. Ultimately he agreed to the suggestion and on 10th September, 1974 they decided that he would cause an explosion at the post office while appellant Nasrullah would cause another explosion at the Telephone Exchange. He has further stated that they talked about it in the presence of Bas Muhammad in the evening preceding the night of the incident. Persuant to the said plan he met appellant Nasrullah at his quarter in the Veterinary hospital in the dark of the night and the latter supplied him a dynamite fitted with a detonator and coil which he placed by the side of the wall of the post office and ignited the coil which caused explosion.

The confession was subsequently retracted by appellant Badaruddin who stated in his statement recorded under section 342, Cr. P. C. that he did not appear before any Magistrate for the recording of confession. According to him he was asked by the police to sign some documents which he did and later on he came to know that the police had obtained his signatures on a forged confession. This statement is far from sufficient to create any doubt about the. recording of the confession as it is highly unbelievable that a Magistrate would fall in league with the police to produce a forged confession before the Court. However, as the confession has been recorded after 13 days of the arrest of the appellant we are required under law to minutely examine it with all the angles to judge if it is capable of inspiring confidence. It has been repeatedly held by the superior Courts that conviction should not be based upon a retracted confession unless sufficient corrobora tive evidence is available. At least one such case has been produced before us by the learned counsel for the appellant. It is Javed Iqbal v. The State (P L D 1975 Posh. 230) which enunciates the above‑said principle.

The learned counsel for the appellant has also pointed out several infirmities in the confession which we shall presently discuss. His first ground of attack is that the confession was recorded after a delay of 13 days and therefore it should be presumed to have been extracted by the police by using pressure. In this connection he has relied upon Manzoor v. The State (P L D 1973 Lab. 714), wherein it was held that unexplained retention of the accused by the police for more than the statutory period of 24 hours raised a presumption of pressure and inducement. It is, however, not the settled position of law that every confession which has been recorded with some delay should be looked at with suspicion or necessarily excluded from consideration. Presumption as regards the delay would depend upon the circumstances of each case. In case the delay has been satisfactorily accounted for by the prosecution the confession may be taken into consideration. In Sharifuddin Pfrzada v. Sohbat Khan and 3 others (P L D 1972 9 C 366) it was held by their Lordships of the Supreme Court that the mere fact that the person making the confession remained fn police custody for some time before the recording of the confession would not necessarily lead to the conclusion that the confession was a tutored one. In another case reported as Muhammad Karim v. The State (P L D 1976 Perh,135) also the same principle was enunciated and a delay of 5 days was not considered fatal to the presumption of voluntariness. In the light of the case‑law cited before us we are in agreement with the learned Assistant Advocate‑General that the delay of 13 days in the peculiar circumstances of this case would net vitiate the confession. However, this is not the only objection against the ad‑insipidity of the confession. The learned counsel for the appellant has also strongly criticised the confession on the ground that the requirements of section 164, Cr. P. C. had not been fulfilled by the Magistrate inasmuch as the requisite questions had not been put to the appellant to ascertain that the confession was being made voluntarily. In fact, section 164, Cr. P. C. itself does not lay down the questions whish should be put to the accused before the making of confession, but it hall been the consistent view of the Courts that the Magistrate should make real endeavour to satisfy himself that the confession was being made without/ any pressure. The learned counsel for the appellant has relied upon Said Begum v. The State (P L D 1959 Lab. 559) wherein it is held that :‑---

"As soon as a person is produced before a Magistrate for getting his confession recorded, his handcuffs should be removed and all the police officers should be turned out of the Court‑room, and he should be informed that he was before a Magistrate and that whether he made any statement or no', he will not be handed back to the police, but will be sent to the judicial lock‑up. He should then be given sufficient time to ponder over the matter. Then he she should be warned that he was not bound to make any statement and if he did so, it may be used as evidence against him and then the following questions should be put to him : (1) For how long have you been with the police

(2) Has any pressure been brought to bear upon you to make the confession

(3) Have you been threatened to make a confession 7

(4) Has any inducement been given to you

(5) Have you been told that you will be made an approver

(6) Why are you making this confession

The learned counsel bas also placed reliance on Muhammad Sharif v. The State (1975 P Cr. L J 889). In this case also the dictum laid down is exactly the same as in the former case. Examining the confession of appellant Badaruddi In the light of the aforementioned case‑law we find that the Magistrate recording the confession not only omitted to give proper warning before putting him the necessary questions but also failed to put all the question which he was required to put to the confessor. He did not enquire from him as to how long he had been in police custody, whether he had been threatened to make the confession, whether he had been promised to be mad an approver and lastly se to why he was making the confession. These questions were essential in order to ascertain that the confession was being made voluntarily. Omission to put these questions would lead to a conclusion that the confession was not recorded strictly in accordance with law. Before closing the discussion on this point we may also observe that the few questions put to the appellant were also not properly framed to as to convey the real intention of the Magistrate to the confessor without any ambiguity. For the reasons given above we are not prepared to admit this confession into evidence.

13. The next piece of evidence against the appellant is recovery o explosives. There is ample evidence on record to prove that Badaruddin who was in police custody at Quetta on 29th September, 1974 led the police party to his house at Qila Saifuilah and produced two dynamites, four detonators and three pieces of fuse coil wrapped in a piece of cloth. Then articles were lying in a room which had no roof. The recovery was made in the presence of two mashirs namely Motisllah and Muhammad Jan, whom the police had picked up from Qila Saifullah. The piece of clot used for wrapping the explosives was in fact a portion of a white "shalwar". The remaining portion of the "shalwar" was recovered from the house of appellant Nasarullah. Other articles such as a tin containing tea leaves and pieces of Jute cord were also recovered from appellant Nasarullah's house but these articles are hardly of any consequence.

On 2nd October, 1974 appellant Nasarullah led the Police party to place near Qila Saifullah and produced one dynamite fitted with a detonator, one extra detonator and a piece of wire. These articles were lying buried t in open land near a huge tree. The recovery was made in the presence of two independent mashirs. All the recoveries were supervised by the Assistant Commissioner, Muslimbagh. The learned counsel for the appellants has questioned the genuines of these recoveries on the ground that the presence of Assistant Commissioner at the time of recoveries gave way to a suspicion that he was over enthusiastic about bringing home guilt to the appellants. This argument is apparently devoid of force. The law does not prohibit the "Ilaqa" Magistrate from supervising any important aspect of the investigation. His presence on the other hand adds to the authenticity of the proceedings. The other objection raised by the learned counsel is that the house of appellant Hadaruddin was inhabited by his relatives whereas the place wherefrom appellant Nasarullah produced explosives was an open place as such both the places were easily accessible to others. In this connection the learned counsel has relied upon several decided cases of Indian Jurisdiction as well as, of Pakistani origin. The first of these cases is Emperor v. Santa Singh (A I R 1944 Lab. 339) wherein the dictum laid down is that the words "Possession and control" as used in section 19(f ) of Arms Act and section 5 of the Explosive Substances Act mean something more than mere constructive or legal possession and control. The possession and control required to constitute offences must mean conscious possession and actual control. There can not be two views about the principle enunciated in this case. However, the facts of the instant case are distinguishable from the precedent case as in this case the incriminating articles were found from places which could be exclusively within the knowledge of the appellants. The other case cited by the learned counsel for the appellants is Amrik Singh v. The Emperor (A I R 1931 Lab. 50). In this case explosives were recovered at the pointation of the accused from a place which was root in his exclusive possession, hence it was held that it was the duty of the prosecution to prove that the accused was in actual control of the articles in question. The learned Assistant Advocate‑General has on the other hand placed reliance on Jindo v. State (P L D 1962 Kar. 228). In this case the stolen articles were recovered at the pointation of the accused from a place near his house. It was held that it was for the accused to explain as to how he came to know that the stolen goods were lying at that place. It was further he‑ld that in the absence of any cogent and reliable explanation it shall be presumed that the stolen goods were in the possession of the accused. The principle laid down in this case is fully applicable to the instant case as the explosives were not only within the exclusive knowledge of the appellant but they also failed to explain the source of their knowledge, therefore, un-escapable conclusion would be that these articles were in the exclusive possession of the appellant their pointation. Before we part with the discussion on this point we may also observe that under section 8 of the Suppression of Terrorist Activities (Special Court) Ordinance, 1974 the onus is upon the accused to account for their possession of the explosive substances. The learned counsel for the appellant has, with reference to the rules of prudence and general principles of law argued that it is prima facie the duty of the prosecution to establish the case against the accused and thereafter the burden will shift upon the accused to rebut the prosecution version. The argument is not devoid of force. However, in this case as the prosecution has been able to satisfactorily prove that the appellants were in unlawful possession of explosive material which was recovered by the police at their pointation, therefore we need not dilate on these points. In our opinion the finding of the Special Court that the appellants were in possession and control of the explosive substances for unlawful purposes is free from any infirmity.

14. Last of all there is evidence of the Inspector of explosive substance who has stated that the explosives recovered from the possession of the appellants were dangerous to human life and property. This evidence calls for no discussion as the fact that the explosives recovered by the police were live is not in any controversy.

15. As discussed above the evidence as regards the conspiracy, and actual causing of explosion is not free from doubts therefore, the conviction of the appellants under section 3 of the Explosive Substances Act is hereby set aside. However, as the possession of the explosives by the appellants proved beyond all shadow of doubt their conviction under sections 4(b) and 5 of the Explosive Substances Act, 1908 is maintained. Both the; sentences shall run concurrently as already ordered by the trial Court. Subject to this modification the appeals stand dismissed.

Appeal partly dismissed.

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