Afzul-Ur-Rehman vs The State

QAZI MUHAMMAD AMIN AHMED, J.---An explosive laden truck, with the appellant on the wheel, was intercepted by a police contingent within the precincts of Police Station Banda District Kark at 17:20 p.m. on 4.6.2013; he was accompanied by Niaz Muhammad, since acquitted. Cache, considerable in volume, was forensically confirmed as high intensity explosive; it also included detonators and an hand grenade, secured vide inventory of even date. As the investigation progressed, the appellant, purportedly desired to make his breast clean; he was brought before a Magistrate on 6.6.2013, who recorded his confessional statement, reproduced below: {{URDU TEXT}} Upon indictment, however , the appellant claimed trial. The learned trial Judge vide judgment dated 20.3.2014 convicted and sentenced both the accused as under:

(i) "Under section 5 of Exp Sub Act 1908 (Act VI of 1908) 14 years' (R.I).

(ii) Under section 7, A.T.A., 1997 (Act No. XXVIII of 1997) 14 years' (R.I).

Forfeiture of whole property to the Government as envisaged under section 5-A of Exp Sub Act 1908 (Act IV of 1908) Sentences to run consecutively with benefit of section 382-B, Cr .P.C."

A learned Division Bench of the Peshawar High Court acquitted Niaz Muhammad co-accused, however , maintained appellant's conviction and sentences consequent thereupon vide impugned judgment dated 26.01.2015 vires whereof are being assailed through leave of the Court on the grounds that retracted confession notwithstanding, appellant's voluntary surrender before the police, by his own volition and will, is manifestly established on the record which in retrospect confirms that he saved the neighbourhood from an impending calamity by taking the unsuspecting police contingent into confidence and in this backdrop his role was more accessory to the State than to the crime; he contends that confessional statement, attributed to the appellant, being exculpatory , is of no avail to the prosecution and that acquittal of identically placed co-accused by the High Court raised the entire edifice to the ground. Alternately it is prayed that in the peculiar facts and circumstances of the case, referred to above, reduction in the sentence would meet the ends of justice, as although the case was triable by a Special Court constituted under the Anti Terrorism Act, 1997, however , in view of the law declared in the case of Ghulam Hussain v. The State (PLD 2020 SC 61), appellant's conviction under section 7 of the Act ibid was not called for, concluded the learned counsel. The learned Law Officer contrarily defended the judgment; he argued that interception of truck loaded with explosive of awful lethality being transported by the appellant conclusively established his guilt and in the face of overwhelming evidence, retraction from judicial confession is nothing more than a belated attempt to hoodwink the process of law .

3. Heard. Record perused.

4. Prosecution with various pieces of evidence has successfully established interception of a truck that carried huge cache of explosive with devastating destructive potential. Appellant's arrest is a factum above suspicion.

Investigative details accompanied by forensic report clinched the charge. The appellant confessed his guilt before a Magistrate after he was already remitted into judicial custody . Contents of the confessional statement, purposely detailed in extenso, unmistakably suggest a change of mind whereunder the appellant appears to have deviated from the course, he was destined to charter; better sense that timely swayed the appellant not only saved him and his companion from being shattered beyo nd recognition; it also gave a new lease of life to a most valuable national communication link. The police contingent that intercepted the truck had no idea about the destructive capacity of the cargo that it carried; they also luckily remained unscathed. Appellant's abstinence, seemingly actuated by a variety of possible factors, though a most fortunate choice, nonetheless, in the totality of circumstances, does not cast away culpability of his undertaking so as to make out a case for an unqualified reprieve without a tag; it, however , certainly extenuates, in no small measures, enormity of the charge and in retrospect entitles him to the premium of a charitable treatment, permissible by law, therefore, while maintaining his conviction under section 5 of the Explosive Substances Act, 1908, a course inescapable in circumstance, his sentence is reduced to the lowest mandated period of seven years' R.I, pre-trial period inclusive. Directions regarding forfeiture of appellant's property as well as case property , that obviously included the impounded truck, are kept intact, however , his conviction under section 7 of the Anti Terrorism Act, 1997 and sentence thereunder , are set aside. Criminal appeal is partly allowed.