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Petitioner: MUHAMMAD IBRAHIM HALEEMI alias ABU ABDULLAH MOHTISIB VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Sh. Amjad Ali, Muhammad Nawaz Abbasi Title: MUHAMMAD IBRAHIM HALEEMI alias ABU ABDULLAH MOHTISIB vs THE STATE Case No.: Criminal Appeal No,9 of 1991 Date of Judgment:1997-08-27 Reported As: 1999 YLR 533 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' MUHAMAD NAWAZ ABBASI, This criminal appeal by Muhammad Ibrahim He1mi alias Abu Abdullah Mohtisib appellant has been directed against the judgment, dated 22-121990, given by the Judge, Special Court Nol (Punjab) for Suppression of Terrorist Activities, Rawalpindi Division, Rawalpindi, by virtue of which the appellant was convicted and sentenced to imprisonment for life twice under section 402-B, C.P.C., and section 4 of the Explosive Substances Act, 1908, separately with a fine of Rupees one lac on each count and in default thereof to suffer R.I. For two years on each count. The two sentences for the above charges were ordered to run consequently with the benefit of section 382-B, Cr.P.C. 2. The appellant, a young man of 28/29 years, an Egyptian national having arrested in a case registered at Police Station Airport, Rawalpindi, under sections 402-A and 402-B, CRC., read with sections 4 and 5 of the Explosives Substance Act, 1908, and under section 13 of the Arms Ordinance, 1965, was challenged to face the trial for the above charges before the Special Court for Suppression of Terrorist Activities Rawalpindi and Islamabad. 3. Precisely, the facts in the background as contained in the complaint Exh.P.J. Lodged by Muhammad Nawaz Qureshi, Company Commander 'F' Company of the Airport Security Force, Karachi, P W.17, are to the following effect:--- ' That on 24-11-1989 Company 'F' of A.S.F., Karachi was on duty from 0200 to 0800 hours. The complainant took charge of the Airport at 0200 hours who was informed by the outgoing Company Commander, namely, Marwat Khan that Flight No,SV-367 . Booked from Islamabad for Al-Riadh and Jeddah was diverted to Karachi Airport at 1915 hours on 23-11-1989 on receipt of an information on telephone about the presence of explosive in the aircraft. The flight in question landed at 2015
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hours on 23-11-1989 at Karachi Airport and the passengers were escorted to the transit lounge. The hand carried and accompanied baggage was unloaded and placed near the conveyer belt for checking and delivery to the passengers. During this process, one bag having found unidentified at the conveyer belt was checked through screening machine by A.S.I. Shaukat, machide operator, who declared the s"ue doubtful. Whereupon, A.S.I. Muhammad Banaras, upon search of the said bag found a box in it which contained a watch with the battery cell and some other material, which were removed to some safe place away from the aircraft and the runway. Muhammad Ayub S.I. Of Equipment Section checked the same with explosive detector and then Moeen-ud-Din Deputy Director, Civil Defence Bomb Disposal Karachi, was called who arriving at the spot defused the bomb. After completing the boarding, the flight was ready for departure when once again all the passengers having deboarded were brought to the Transit Lounge with their baggage, where a passenger, namely, Gul Rehman son of Bahadar Khan, Passport No,E-799406, Ticket No,065-9212- 820-9903, Seat No,245, I.D. Card No,138-86-519157 was detained as suspects alongwith his two companions and the unidentified baggage was handed over to Waqar Hussain S.O. (FIU) for interrogation and investigation. The flight having cleared was allowed to proceed to its destination. However, during the course of investigation, the appellant having found the actual culprit was taken into custody and upon completion of the investigation, he was challaned to face the trial. 4. The prosecution in support of its case has produced a large number of witnesses at the trial. Balchtiar Ali P.W.1, Flight Operation Officer, Saudi Arabia Airlines at Islamabad, deposed that he was called by the Airport Security Officer in his office at 1820 Hours on 23-11-1989 and directed him to visit the Control Room of the Airport Security Force, where he was informed about the bomb on board of Flight No,SV-367. He immediately conveyed the message to the Captain of the aircraft who had already changed his direction to land at Karachi Airport. ' Bashir Ahmad P.W.2, Group Captain/Airport Manager, stated that on 23-11-1989 at about 6-45 p.m. Jahangir Butt, Supervisor in Civil Aviation Authority, Islamabad Airport, informed him to telephone that he had received a letter addressed to the Aiport Manager through a taxi driver containing threats to Saudi Flight SV-367. According to this witness, he made necessary arrangement through the concerned officials of Airport Security Force for conveying the information to the Pilot Saudi Flight No,SV-367. He also contacted the Civil Aviation Authorities at Karachi and passed on the information to the Director of Operation at Karachi Airport. In the meanwhile, he received telephonic call that a person, namely, Abdullah of Arabic origin demanded ransom to be delivered at his address located in Street No,30, F-8, Islamabad. This information was conveyed to the Security Officer in the Emergency Control Room at the Airport which was onward delivered to Islamabad police. He also contacted Karachi Airport to know the approximate time of Flight No,SV- 367 and to ensure that the emergency precautions were taken. The arrival of the aeroplane at 2030 hours was confirmed by the Airport Control Tower Karachi. ' Muhammad Jahangir Butt P.W.3,Vigilance Supervisor at Islamabad Airport stated that on 23-11- 1989 at about 6-45 p.m. He was on duty in the Hall in front of domestic arrival lounge when a taxi driver, namely Pervaiz delivered three Khaki colour envelopes Exhs.P-1 to P-3 containing letters P.1/1- 2, P.2/1-2 and P.3/1-2 to Airport Manager stating that a passenger had requested him to deliver the same to the Airport Manager and he taking the impression that the said envelopes were meant for V.I.P. Movements took the same to the Airport Manager. The contents of these letters disclosed that explosive substance was put in Flight No,SV-367 of Al-Saudia. Immediate efforts were made to apprehend the person who handed over the envelopes to the taxi driver but he could not be traced. The Airport Manager was informed with delivery of letters in question to him. ' Zafar Mahmood P.W.4 has stated that the letters in question were retained in the office of Airport Manager received through Pervaiz taxi driver and confirmed the statement of P.W.3 Muhammad Jahangir Butt.
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' Pervaiz Ahmad P.W.5 who is a taxi driver admitted the taking of the letters from the above said unknown person for onward transmission to the Airport Manager he handed over the same to Muhammad Jahangir Butt P.W.3. The witness giving the description of the person who handed over to him these letters narrated in the circumstances under which said person approached him and disappeared. The witness had identified the appellant as the same person who requested him to deliver the envelopes to the Airport Manager Islamabad in the identification-parade held in Adiala Jail on 14-12-1989. ' Abdul Ghafoor P.W.6, another taxi driver, giving the description of the appellant stated that Pervaiz Ahmad driver was seen by him standing with the appellant in the Airport Hall at the time when two flights from Karachi and Jeddah had arrived at Islamabad. He correctly identified the accused in the Court as the same person who delivered the envelopes to Pervaiz Ahmad taxi driver. The appellant was arrested on 13-12-1989 from Islamabad near the Embassy of Royal Saudi Arabia on the pointation of this witness. At the time of arrest of the appellant, an attache case P-6 containing the clothes and other articles of personal use of the appellant along with two electric wires, four pencil cells, two small fuse wires, a battery VIMNUS, hand battery plastic made and number of other articles including the notebooks, maps, papers, religious books, photo copies of some books on literature, religious, military strategy, medicines and explosive weapons, visiting cards, boarding card and six .32-bore pistols with live bullets were also recovered from the accused. From the personal search of the appellant, the Pakistani currency, dollars, wrist watch etc. Were recovered and taken into possession. ' Sher Ahmad P.W.7, driver of taxi pick-up No,IDT-6034 deposed that the appellant hired his taxi on 23-11-1989 from Aabpara Market for Airport to reach at the airport at 5-30 p.m. He took the accused to the airport at the appointed time and after staying there for 10/15 minutes took him back to Islamabad towards Faisal Mosque from where the appellant took him to opposite Ayyub Market in Street No,30. The witness during the identification-parade of the appellant in Adiala Jail on 14-12- 1989 identified the appellant as the same person who had hired his taxi on 23-11-1989. ' Talib Hussain P.W.8 identified the accused as the same person who made a telephonic call from his shop on some date of November, 1989, before half an hour of arrival of police party at the shop in search of the appellant. ' Muhammad Farooq P.W.9, a duty officer at the airport as subordinate of Airport Manager stated that initially the appellant tried to approach him to deliver some letters and later Muhammad Jahangir Butt informed him about the receipt of till letters in question through the taxi driver and the plantation of a bomb in the flight in question. ' Khalid Farid Malik P.W.11, Supervisor, Customers Service, Saudi Airlines, Rawalpindi, on receipt of information regarding the landing of Saudi Flight SV/367, a direct flight from Islamabad to Al- Riyadh at Karachi Airport and plantation of bomb in it, obtained the photocopies of threat letters from the concerned officials which were produced by him before the Investigating Agency. ' Khurshid Ahmad Khan P.W.13 was Station Manager for Saudi Arabia Airlines, Karachi. On receipt of information of planting a bomb in the flight informed his colleagues at the airport and on arrival of the aero plane, he with the help of authorities arranged shifting of the passengers to the transit Hall. The aeroplane was searched by A.S.F. And bomb disposal squad. The hand-baggage was thoroughly checked and carefully screened. An unclaimed piece of baggage having found unidentified was searched and a number of articles including the electronic appliances, two small bags containing explosive substances, one match box, two detonators, a battery cell and such other articles were recovered. The lunch box found in the bag also contained explosive with bomb. ' Muhammad Iftikhar P.W.14 Customers Services Agent Al-Saudia, Karachi Airport also made a similar statement.
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' Raja Bashir Ahmad, S.H.O., Police Station Airport Karachi, P.W.15, inspected the airport premises. He prepared inventory of the articles kept in an unidentified bag P-87 and sent the complaint for registration of case. Thereafter, the investigation was handed over to the D.S.P. C.I.A., of the concerned circle. ' Moeen-ud-Din P.W.16, Deputy Director, Civil Defence and Officer in charge of Bomb Disposal Services, Government of Sindh, Karachi, after the inspection of the recovered explosives substance and bomb issuing a certificate confirmed through report. Given by him that the device could be termed on international terrorism pattern. He in his report further clarified that the recovered material commonly used for bombing and the same being explosive component could be used for blasting and bombing. ' Muhammad Anwar Qureshi, Security Officer, Airport Security Force, P.W.17 has verified the landing of flight at Karachi and unloading of the baggage and the passengers for the purpose of checking. He confirming the prosecution story deposed that one bag P-87 found unclaimed contained explosive substance as mentioned above was opened in his presence and the explosive material contained therein was taken into possession by the Investigating Officer. He certifying the statement of Moeen-ud-Din P.W.16 stated that the inspection of the explosive substances and preparation of investory was made in his presence. ' Muhammad Raman A.S.I. P.W.18, Shaukat Ali A.S.I., A.S.F., P.W.19, S.I. Abdul Salaam A.S.F. Karachi, P.W.20 Muhammad Ayyub, S.I., Airport Security Force, Karachi, P.W.21, having made similar statements witnessed the recovery of the explosive substance from the unidentified bag P-87 during the search of luggage of the passenger at Karachi Airport. ' Muhammad Amanullali P.W.22, Assistant Director F.I.A., Peshawar stated that the appellant in his company pointed out the shop from where he purchased the pistols and the explosives in question. The accused then took this witness to a commercial typewriting Institute located in Peshawar Cantt. From where he got typed the letters which were delivered in the office of Airport Manager, Islamabad. The Investigating Officer took into possession type-writer from the said Institute. ' Hamad Hussain Siddiqui P.W.23, a watch maker, stated that the time-piece P-96 was brought by the appellant to him for repair. ' Shakeel-uz-Zaman P.W.24 is the owner of the Commercial Institute who confffmed the visit of the appellant to his Institute and got letters in question typed from him. The witness stated that on his query about the contents of the letters, the appellant said that it being part of his study was an ordinary matter. ' Muhammad Mukhtar P.W.25 has unloaded the baggage from the trolleys at Karachi Airport in the apron area and after identification of the baggage by the passengers loaded the same in the container. According to him, bag P-87 was left unidentified and unclaimed which was unloaded from Al-Saudia Flight SV-367. The same was taken into possession by the Security Officer Muhammad Itftikhar P.W.14. ' Zafar Mahmood P.W.28, a handwriting expert after making comparison of the documents recovered during the investigation by the Investigating Agency and submitted positive report under his signatures. ' P.W.30 Ch. Muhammad Ali Magistrate 1st Class, Islamabad, recorded the confessional statement Exh.P.W.13/3 of the appellant under his signatures. ' Abdul Aziz Saeed Alahmadi P.W.31 stated that he is a Arab National and having gone to Afghanistan for Jihad and while going back to his native land was requested by the accused to take bag P-87 to Jeddah from where somebody will collect the same from him at the airport. According to this witness, he alongwith the accused and some other Mujahideen reached Islamabad Airport on 23-11-1989. The bag P-87 was handed over to him by the appellant at the
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airport and during the checking of the luggage at Islamabad Airport, lunch-box P-96 was recovered from the bag P-87 and the concerned staff after formal inquiry handed over the bag and the box to him and the bag was placed on conveyer belt for boarding. After taking off from Islamabad, the aeroplane made an emergency landing at Karachi Airport. He having found the bag P-87 lying in a suspected manner detached himself from the said bag. He stated that he alongwith other passengers was accommodated in a hotel at Karachi and later was sent to Saudi Arabia. After arriving at Jeddah Airport, he asked Tarki Almalubi, a fellow passenger, to bring the matter to the notice- of Usama-bin-Ladin, Sheikh-ulMujahidin and himself left for Madina- tulMunawwara. He narrated the incident to the officials of the External Ministry and subsequently, the F.I.A., officials contacted him in Saudi Arabia. His statement was recorded by Mr. Sajjad P.W.34 as official of F.I.A. The witness stated that he left Islamabad on 23-11-1989 possessing Saudi Arabian Passport through Flight SV-367 and the relevant entry on his passport was at page 17. The photo- copy of the relevant pages of his passport have been placed on record as P. W .31/1 and P .W .31/2 . ' Junaid Sultan P.W.32, In charge Emmigrakon and Anti-Smuggling, Islamabad Airport, partly investigated the case. He took into possession the letters P.1/1-2, P.2/1-2 and P.3/1-2 from the Airport Manager. ' Malik Muhammad Hafeez, Assistant Director, Agriculture P.W. 33, on the direction of the Deputy Commissioner arranged identification-parade of the accused in the Adiala Jail on 14-12-1989. The identification-parade was held under his supervision. Pervaiz Ahmad P.W.5 and Sher Ahmad P.W.7 correctly identified the accused in the identification-parade. ' Syed Sajjad Hussain P.W.34, Deputy Director F.I.A. Rawalpindi, Shaukat Mahmood P.W.35, Inspector F.I.A., Mian Akhtar Ali P.W.36 S.P. Headquarters, Rawalpindi, Gulzar Ahmad Chughtai P.W.37, Assistant Director F.I.A. And Najabat Hussain Inspector F.I.A. Crimes Branch, Rawalpindi, P.W. 38, partly investigated the case. 5. The appellant in his statement under section 342, Cr.P.C., denied the prosecution allegation and his connection with the crime property recovered from the aeroplane allegedly belonged to him. He further denied the delivery of Bag P-87 to Abdul Aziz Saeed Alahmadi P.W.31 for taking the same to Jeddah through Flight SV-367 on 23-11-1989. He also denied the obtaining of his specimen signatures in presence of Malik Muhammad Hafeez P.W.33. He taking plea that he was shown to the P.Ws. Before the identification-parade pleaded that he was involved in the false case for the reason that he voiced against the Kingdom of Saudi Arabia for not sending Mujahidin to Afghanistan for Jihad. The Saudi Government having not tolerated the proposal for not calling back the Mujahidin, deputed Abdul Aziz Saeed Alahmidi P. W.31, an employee of the Saudi Intelligence, who with a view to achieve the goal made the appellant scape goat. 6. Learned counsel for the appellant contended that (a) from the evidence brought on record, it is not proved that the recovered articles were explosive substance. The report of the Expert of Bomb Disposal Squad revealed that it was only a device and not actually a bomb to be used for blasting. (b) The bag P-87 allegedly was loaded in the aeroplane from Islamabad and its recovery at Karachi could not be linked with any of the passengers. The appellant without travelling through the flight in question neither could load the same as accompanied baggage nor any direct evidence could be traced and collected to connect the appellant with the bag. (c) The sole statement of Abdul Aziz Saeed Alahmidi an accomplice subsequently recorded at Jeddah to the effect that the bag in question was handed over to him by the appellant in the departure Hall as Islamabad Airport is not enough to link the appellant with the bag and prove the charge. (d) He having not disclosed the name of the appellant as owner of bag P-87 during the process of search and recovery, was not a truthful person to be believed and consequently the possession of the bag could not be attached with either to any passenger or the appellant except the said witness himself. (e) Notwithstanding the contents of the bag, the same having not proved to have been
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owned or delivered by the appellant, to the witness, the charge against him was groundless. (f) The witness while disclosing the loading of the bag at Islamabad and unloading at Karachi and subsequently its delivery at Jeddah could not shift the burden to the appellant. (g) The evidence brought on record even if is believed as such against the appellant, no case of hijacking under section 402-B, P.P.C., and under Explosive Substances Act, 1908, was made out without any physical involvement, only on the basis letters in question allegedly handed over by him to a taxi driver to deliver the same to the Station Manager Civil Aviation Authority. At Islamabad Airport which was not evidence of link of the appellant with the bag. Therefore, the charge of attempt to hijack the aeroplane under section 402-B, P.P.C., is not proved directly or indirectly. He next contended that the appliances, namely, electric wires, the detonaors, fuse and such other articles recovered from the bag may be individually components of bomb but the same were not definable as a bomb as such and the bag containing such articles being not in possession of any person, therefore, the article in question with mechanical process could not automatically be used as a bomb. The same were also not usable as explosive and, consequently, the charge under sections 4 and 5 of the Explosive Substances Act, 1908, also remained unproved. 7. Mr. Riaz-ul-Haq Gillani, learned counsel appearing on behalf of the complainant argued that the appellant is an Egyptian national who went to the Islamabad Airport through a taxi driven by Sher Ahmad P.W.7 at 5-15 p.m. On 23-11-1989. He was identified by the driver as the same person who travelled with him. The appellant was also correctly identified by Pervaiz Ahmad, another taxi driver to be the same person who approached him at the Airport for delivering the letters in question to the Airport Manager. Bashir Ahmad, the Airport Manager has confirmed the receipt of telephone calls before the receipt of the letters in question through the Airport Security Force. Learned counsel contends that the evidence of identification, and the judicial confession made by the appellant before a Magistrate at Islamabad was a strong piece of evidence against him. Learned counsel further contended that the evidence of Abdul Aziz Saeed Alahmidi a Saudi national to whom the appellant handed over the bag P-87 to take the same to Jeddah provided a direct proof of ownership of bag and the terrorist activities of the appellant. He argued that individual facts being chained with each other without any breakage sufficiently proved the guilt of the appellant beyond any doubt. He further argued that while giving comulative effect to the evidence, the same would lead to the only conclusion that the appellant and no one else was involved in the crime. In reply to the contention of the learned counsel for the appellant, he submitted that the physical presence of a person for the purpose of hijacking is not necessary and such purpose could be achieved through remote control under threat of seizing of Aircraft. According to him, the letters by virtue of which the appellant demanded ransom by placing the explosive substance in the aeroplane was a sufficient act to endanger the lives of about three hundred passengers by destroying the aeroplane and, thus, in addition to an offence under section 402-B, P P.C., he has also committed an offence under section 4 of the Explosive Substances Act, 1908. The learned counsel argued that if the device would have not been detected, there was every possibility of an explosion in the aeroplane. He summing up his arguments submitted that the prosecution having brought ample evidence direct and circumstantial has proved the charges under section 402-B, P.P.C., read with section 4 of the Explosive Substances Act, 1908, against the appellant. Learned counsel for the State supported the arguments of the learned counsel for the complainant. 8. We have heard the learned counsel for the parties at length and perused the record with their help. The main stress of the learned defence counsel is that the offence of hijacking as defined under section 402-B, P.P.C., is not made out without the physical control of the aeroplane and consequently the appellant cannot be held guilty of hijacking. There are number of questions to be determined for the purpose of disposal of the present appeal. Firstly, whether to constitute an offence under section 4 of the Explosive Substances Act, 1908, the possession of explosive
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substance should not be conscious and intelligent and also direct or mere knowledge of possession without physical control of the explosive substance is enough. Secondly, whether without intending or involving danger to life or serious injury a person can be convicted for the offence under section 4 of the Explosive Substances Act, 1908. Thirdly, whether without the aid of any other substance, the explosive as such is enough to cause danger to life or serious injury and will constitute an offence under section 4 of the Explosive Substances Act, 1908. Fourthly, what are the essential ingredients of hijacking as defined in section 402-A, P.P.C., the offence of hijacking undoubtedly can be committed with or without physical presence of a person in the aeroplane. The hijacking is possible through remote control by way of seizing the aeroplane or control of the same by any means or method. Before discussing the sufficiency or otherwise of the evidence to connect the appellant with the commission of offence in this case, it is essential to determine the question as to whether in the given circumstances, the offence of hijacking as defined under section 402-A, P.P.C., was actually committed and further the articles recovered from the bag Exh.P-87 can be defined as…
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