IN THE HIGH COURT OF SINDH AT KARACHI
MR. JUSTICE SALAHUDDIN PANHWAR
Spl. Cr. A. T. Appeal No.48/2010
Appellants : Abdul
Baqi @ Talaha & two others.
Respondent : The State.
………………..
Spl. Cr. A.T. Jail Appeal No.57/2010
Appellants : Abdul
Baqi @ Talaha & two others.
Respondent : The State.
………………..
Appearance:
Mr.
Abdul Sami advocate for appellant No.1,
Mr.
Muhammad Ashraf Samoo advocate for
appellant No.2,
Mr.
Noman Shafiq advocate for appellant No.3.
M/s. Khadim Hussain & Ali
Haider Saleem, APGs for the State.
Date
of hearing : 11th and 24th
December 2013.
JUDGMENT:
SALAHUDDIN PANHWAR, J:- Through captioned appeals,
appellants have assailed judgment dated 28th October 2010, passed in
Sessions Case No. of 2004 (Re-The State
V. Abdul Baqi & others), whereby the learned trial court Judge convicted
all three appellants under section(s) 4/5 Explosive Substance Act, 1908 and
sentenced them to suffer Rigorous imprisonment for 7 years with confiscation of
their property either moveable or immoveable to the Government, convicted U/S
7(b) of Anti-Terrorism Act to suffer sentence for 10 years with fine of Rs.
50,000/- and convicted u/s 13-D, to
suffer sentence for 3 years.
2. Succinctly,
relevant facts of the prosecution case are that on 26.02.2010 the complainant
Inspector Choudhary Azam Hussain of CID Sindh Karachi alongwith his subordinate
staff was busy in search of the proclaimed offenders and terrorists within area
of Jamshed Town Karachi, while he received a tip-off that some terrorists,
having explosive substance, are present in a house, located in Street (Gali)
No.2, near Maktab Al Razi, opposite to Gru Mander with an intention to commit an
act of terrorism on procession of 12 Rabi-ul-Awal. On such information, he
alongwith staff rushed to the pointed place, where found five persons, having
kits on their shoulders. All accused persons tried to escape but three of them
were apprehended by complainant party. On their personal search one black bag
was secured which was lying on the shoulder of accused Abdul Baqi and same was
found containing 20 Kg explosive substance “RDX”, two Detonators with electric
wire and also secured one un-licensed and un-numbered T.T. Pistol of 30 bore with
magazine, containing five bullets from left side folder of his shalwar. On the
personal search of the accused Muhammad
Ismile Chandio, one black bag containing one “RPG” (Gola), one TNT block of 250
grams, two Detonators with electric wire was secured and from left fold of
shalwar one un-numbered, un-licensed TT Pistol of 30 bore and magazine with
four bullets, were recovered. On the personal search of accused Muhammad Yousif
Chandio, one black bag, containing one RPG (Gola), 30 meter detonating card,
two detonators with electric wire and one un-licensed T.T. Pistol with magazine
containing 6 bullets from left side folder(nefa) of his shalwar. The
apprehended accused disclosed the name of their escaped accomplices as Rehmat
Gul and Hakim alias Chhota Hakim. Thereafter, police prepared such memo at the
spot and lodged FIR 34/2010 at PS CID Sindh, u/s 4,5,6 Explosive Substance Act
, and separate FIR(s) u/s 13-D against all accused persons. After usual
investigation, accused were sent-up for trial.
3. After
compliance of provision of Section 265(c ) Cr.PC, the charge against all three
accused persons was framed to which they pleaded not guilty and claimed their
trial vide their pleas, recorded separately.
4. To
substantiate its case, prosecution examined following witnesses:- PW -1/Ex.8
inspector CH. Azam Hussain who produced memo of recovery as Ex 8/A and FIR
Ex.8/B and three FIR(s) Ex 8/C, Ex 8/D, Ex 8/E and memo of wardat as Ex 8/F. PW
2: SIP Salahuddin Ali , PW.3: SIP Muhammad Amir who produced the report of
explosive material as Ex.12/A. PW.4: I.O Inspector Imam Khan who produced
report of FSL Ex. 13/C, letter and sanction order Ex.13/D and Ex.13/E
respectively. Thereafter side of prosecution was closed.
5. The
statements of accused person (s), were recorded under section 342 Cr.P.C
respectively, wherein they professed their innocence and claimed prosecution
case to be false, further contended that they were in wrongful confinement of
law enforcement agency, and they were taken in custody from different places.
However, none of the accused persons came forward to examine himself on Oath or
to lead evidence in his defence, as provided under section 340(2), Cr.P.C.
6. Learned
counsel for the appellant / convict has, inter-alia,
argued that memo of recovery reflects that explosive material was sealed,
whereas I.O and PW says that only arms were sealed; material contradictions
were found in the statement of witnesses , but such glaring contractions were
not considered by trial court though such contradictions have made the
prosecution case doubtful. In support of his contention he has relied upon case
of Attaullah alias Qasim and another v. The State reported in 2006 YLR 3213,
case of Attaullah and another V. The State reported in 2007 MLD 310.
7. On
the contrary, learned APG, while refuting the contentions raised by rival side,
argued that all three accused were arrested at the spot with heavy explosive
substance and un-licensed weapons; no enmity is existing or suggested against
police hence trial court has rightly convicted them, thus he relied upon case
of PLJ 2000 SC 303, PCrLJ 2008 1039 (Kashif
Saddique Versus the State), MLD 2004 , 200 (Munawar Shah Versus the State).
8. We have carefully gone through the
record of the case and considered the submissions of the learned counsel for
the parties.
9. Scanning
of the record makes it clear that the prosecution has claimed to have recovered
pistols and explosive substances from the possession of the appellants and they
have been punished for such charges accordingly.
10. Before
proceeding further into the merits of the case, it would be pertinent to
mention that judicial propriety, demands in this case to first understand the
meaning of the explosive substance with reference to Section-2 of the Explosive
Substances Act, 1908 (hereinafter will be referred to as Act) which defines
the explosive substance in following words:-
"In this Act the
expression "explosive substance' shall be deemed to include any materials
for making any explosive substance; also any apparatus, machine, implement or
material used, or intended to be used, or adapted for causing, or aiding in
causing, any explosion in or with any explosive substance, also any part of any
such apparatus, machine or implement"
The above definition makes it clear that the
provision of Section-2 of the Act does not confine the expression 'explosive
substance' rather the same is widening one. However, such widening
definition has been made subject to that any material should be for
making explosive substance or causing any explosion. Thus, it is
quite safe that it could be any material (substance) if it is established that such
substance can be used for making explosive substance or can be used for causing
any explosion. In other words the prosecution continues under a mandatory
obligation not only to prove recovery of substance (material) but its
obligation becomes rather grave to prove that such material or apparatus is
such that same can either be used for making explosive substance or can
be used for causing any explosion.
11. Having
discussed above, now we revert to the merits of the case and feel it just and
proper to examine the case, in hand, within the parameters of Section 4-5 of
the Explosive Substance Act, 1908.
12. Regarding
arrest and recovery from possession of the appellants. The prosecution has brought
on record the evidence of PW Choudhary Azam Hussain and PW SI Syed Salahuddin
Ali. The evidences of these witnesses prima facie show that these witnesses
have supported each other on all material aspects. These witnesses stood firm
on the manner of receipt of information during patrolling; timing thereof;
their arrival at pointed place and recovery of the articles from the possession
of the appellants.
13. So
far as to the plea of the defence revolving around place of arrest, manner of
arrest and recovery without association of the private persons, we would say
that since the place of incident is not a ‘place’
within meaning of the Section 4(q) of the Criminal Procedure Code; because
within meaning of the Section 103 of the Code the search of ‘place’ is necessary to be within
presence of the witnesses of the locality. However, there is no hard and fast
rule because it is the attending circumstances which are decisive to consider
such plea. In the instant matter the information was received during the
patrolling with a further explanation that persons were about to leave. Such
mentioning is also patent in the FIR that ‘The
terrorist possess explosive substance and may shift anywhere at any time”. This
was also stated by the PW-Salahuddin in his examination –in-chief as ‘Spy also informed the inspector that the
persons who had assembled there might leave the place to achieve their object’.
Therefore, if the police party is allowed to look for association of
witnesses it could have cost escape of the culprits. The formalities are not
meant to allow escape of the culprits. In addition to above, the people usually
do not come forward to speak against the criminals and even otherwise, it was a
matter of explosive which, itself,
is sufficient for keeping the people away from such place. Therefore, such plea
of the defence is not of any substance. Even otherwise, it is now established
principle of law that police officials
are as good witnesses as private person can be. The evidence of the police
officials should not be doubted merely their being police officials unless it
is established that the police officials have / had such annoyance or enmity
with the accused persons. It is also a matter of record that scanning of the
cross-examination of these witnesses show that defence has not pleaded any
specific plea of enmity against these witnesses. In absence of any annoyance or
enmity against the police official (s) their evidence may not be viewed with
doubt simply on their being police officials but their evidence should be treated
as that of a private person. The
witnesses also identified the properties as same which was recovered from
possession of the appellants. It was explained by the PW-1 complainant in his
cross examination that ‘On all the 3
bags 3 small white cloth [s] were fixed for the sake of identification’.
14. As regard to the non-sealing of the bag(s), containing explosive it would suffice to say that such recovery was claimed to be explosive which was not only to be examined by the expert but was also required to be handled by an expert, therefore, non-sealing of such bags by the complainant (police party) is not only quite logical but also reasonable one. At this juncture, it is germane to mention that the purpose of sealing of the property is always to keep it in same position as it was recovered so as to eliminate chances of tampering therewith. The same principle cannot strictly be applied in matter (s) of explosive because the articles, recovered as explosive or even under suspicion of explosive cannot be expected to be sealed by ordinary hands but only skilled hands. Such bona-fide also appears from another aspect that pistol (s) recovered from possession of the appellants were sealed by the police party. This patently proves that complainant (police party) was aware with objective of the procedural requirement of sealing of the property. The position, being so, made it clear that act of non-sealing the explosive was not only deliberate but was also logical and reasonable.
15. Since,
on recovery of the explosive, the
role of the expert starts, and the
recovery of the explosive also
requires to be immediately dealt with by the expert for safety. To scrutinize what measures were taken by the
police in that respect it would be necessary to refer the evidence of I.O Imam
Khan who stated in his examination-in-chief that:
"While inspecting the site I wrote
letter to incharge Bomb Disposal Unit Special Branch Sindh Karachi for
inspection of the property, secured from the accused. I produce such letter as
Ex.13/A………….Thereafter, our police party returned to PS CID Sindh where Munir
Ahmed Sheikh, SIP of Bomb Disposal Squad also came to whom the property,
secured from the accused, was shown who defused the entire property consisting
of explosive material".
From the above portion, it becomes quite apparent
that expert was asked to come by the
Investigating Officer immediately and bags (explosive) were removed from the
public place (place of arrest and recovery is a public place) to CID Unit
perhaps under a belief that same is not activated to blow as the culprits were
seeing carrying them on their shoulders. Further, the perusal of the report
(Ex.12/A) shows that late Munir Ahmed Sheikh did examine the property on the
very date of the incident i.e. 26.02.2010 at 1930 hours which means that
prosecution did take every measure to ensure immediate examination and disposal
of the explosive.
16. Further,
we take up the evidence so as to examine as to whether the prosecution proved
the charge against the appellants in view of above discussed criteria regarding
recovered articles to be explosive or
otherwise. For that we would like to refer the relevant portion (s) of
examination-in-chief of PW-1 Ch. Azam Hussain which is reproduced hereunder:-
PW-1
Ch. Azam Hussain
On their personal search we found
that all the three apprehended persons were having bags on their shoulder. On
the search of the bag which was on the shoulder of accused Abdul Baqi 25 KG
RDX explosive material, two detonators with electric wire was found
and one pistol 30 bore with magazine containing 5 live bullets was secured from
left side nepha of his shalwar; from the bag of accused Muhammad Ismail Chandio
one RPG Gola, one TNT block weighing 250 grams, two detonator with
wires were secured from his bag and one 30 bore pistol with magazine
containing 4 live bullets from left side nepha of his shalwar, while from the
bag of accused Muhammad Yousuf Chandio police secured one RPG Gola, 2
detonators with wires one electric cord of about 30 feet from his bag while
one 30 bore pistol was secured from left side nepha of his shalwar. The pistol
contained one magazine and 6 live bullets.
The perusal of examination of the above
witness shows that he not only gives the detail of manner of arrest but
specifies some details of the explosive secured
from the bags, being carried by the appellants, which is expected from an
Inspector of CID Unit particularly where the darkest fact of our society is
that people often see and hear the use of explosive.
The TNT Block, PRG Gola and detonator (a device used to trigger an
explosive device which can be chemically, mechanically or electrically) are
no more unknown to criminals so also to the police. It is the Law Enforcing
Agencies, including CID Unit, which are believed and expected to deal with such
crimes and criminals. Therefore, despite admission of PW-Ch. Azam Hussain in
his cross-examination that “In our
police party there was no explosive expert” such act of giving details of recovered explosive is worth substance.
However, this could have been material only if the witness (police party) could
have claimed defusing of the explosive,
which the police party never claimed.
17. We
are cognizant of the fact that that the said PW is not the expert therefore, such words of this witness were never sufficient
to give the recovered articles a status of explosive.
This could be possible only through an expert.
Here it is worth to add here that provision of the article -71 of the Qanun-e-Shahdat
Order makes it obligatory that :
“if it refers to an opinion or to the
grounds on which that opinion is held; it must be the evidence of the person
who holds that opinion on those grounds’
This insists that where it is the evidence
of an expert then it should be the
expert who should be examined. However, the Qanun-e-Shahadat Order itself
provides a mechanism for production of the report e.t.c without its scriber.
Since in the instant case it came on record that Mr. Munir Ahmed Sheikh, the
expert, had died, therefore, prosecution produced the report, issued by such
witness, on record through PW- SIP Mohammad Aamir. The PW-SIP Mohammad Aamir
claimed to have worked with late Munir Ahmed Sehikh SIP for about 11 years in
this Squad and confirmed that report (Ex.12/A) bears the signature of the late
Munir Ahmed Sheikh. while the defence has never challenged / questioned the
status of the Munir Ahmed Sheikh as an
expert therefore, the report so issued by said Munir Ahmed sheikh was legally
brought onto the record by the prosecution within meaning of the Article 61 of
the Qanun-e-Shahdat Order. Therefore, the Court can legally consider the report
to form an opinion.
18. At
this juncture, it would be significant to see what the expert found on examining these recovered explosive. For that the column-10 and 12 of the report of the expert (Ex.12/A) is reproduced
hereunder:-
|
10.
Found
Recovery |
02 Active Bomb associated with specific
accessories i.e Detonating Cord in orange colour which were connected inside
the RPG Rocket Gola bearing No.(a) 82,42,1-76-991 (b) 82,42, 18-76-991
attached with Detonators Cord Length Approx. 1 ˝ Ft. and also recovered 20
KGs RDX white colour in powder shape, 06 Detonators, Mark-33, electrical with
yellow colour wire length about 3 Mtr. Each one block TNT high explosive in
yellow colour, eighing about 225 grams. |
|
12.
Possible observation |
02 Active Bomb associated with specific
accessories i.e Detonating Cord in orange colour which were connected inside
the RPG Rocket Gola bearing No.(a) 82,42,1-76-991 (b) 82,42, 18-76-991
attached with Detonators Cord Length Approx. 1 1/2 Ft. and also
recovered 20 Kgs RDX white colour in powder shape, 06 Detonators, Mark-33,
electrical with yellow colour wire length about 3 Mtr. each. One block TNT
high explosive in yellow colour, weighing about 225 Grams. |
There may be some difference in the weighment,
given by the PW-1 Complainant from that given by the expert in his report. Thus
it would suffice to say that PW-1 Complainant had given the detail of weight without
scaling while the expert had every opportunity to properly weigh the same,
therefore, such mere difference in weighment in RDX and TNT block is not sufficient
to disbelieve the evidence.
19. As
the above discussion makes it clear that prosecution not only proved the
recovery of articles from the possession of the appellants but also prima facie
established the recovered articles to be explosive,
therefore, learned trial court judge committed no illegality in believing
the evidence.
20. Whereas, the defence has not
brought any material on record which could show serious enmity or infuriation
of the complainant with these appellants which could justify foisting of such
huge quantity of explosive against the appellants, particularly where status of
the recovered articles as explosive stood
established. 21. With regard to
the conviction, awarded to the appellants, under Section 13-d Arms Ordinance,
it would be pertinent to say that the prosecution did establish the recovery of
pistol (s) from the possession of the appellants as same were sealed on the
spot and were accordingly sent for Forensic analysis and report. The report of
Forensic confirmed that same were received with seals intact and after report
(Ex.13C) confirmed that weapons were in working order.
22. Since,
in the instant case the appellants have not established anything against the
police officials though it is a matter of record that the appellants claimed to
be in custody of the Law Enforcing Agencies prior to their arrest but they failed
to produce any evidence to substantiate their plea (s).
23. In
view of above discussion we do not find any substance in the appeal (s), which
are dismissed accordingly. Consequently, the conviction awarded by trial court
is maintained.
J
U D G E
J U D G E