' SHAHID ANWAR BAJWA, J.---This matter was partly heard on 5-11-2009 when it was adjourned to 12-11-2009. Arguments concluded on that date. Though judgment was written in part before my posting at Larkana, it could not be finalized.
2. The facts relevant to this application are that on 10-6-1996 at 1400 hours Justice (Retd.) Nizam Ahmad and his son Nadeem Ahmad came to main gate of bungalow and as their car stopped outside the gate the complainant noticed fire shots. He came out and noticed two persons on Motorcycle of red colour making good there escape. The person sitting at the pillion seat had a machinegun in his hands. Complainant went to the car and saw Justice Nazim Ahmad and his son Nadeem Ahmad lying dead due to bullet injuries. They were removed to hospital and F.I.R. No,357 of 1996 was registered at Police Station Ferozabad on 10-6-1996 at 1630 hours. After registration of F.I.R. Police investigation followed. Accused Muhammad Bilal Shaikh was arrested and interim challan was submitted on 16-7-1997 against Muhammad Bilal Shaikh in custody while one Ahmed Shah was shown as absconder. Final Challan was submitted on 14-9-1997.
3. During pendency of the case fresh challan was submitted and the present applicant as well as one Akhtar Jawaid Pirzada were shown in custody and Asif Ali Zardari, Shafique Baba and two others persons were shown absconders. This was done in charge-sheet dated 2-2-1999. Yet another charge-sheet was submitted on 3-5-1999 when the present applicant and Asif Ali Zardari were shown in custody while two other were shown as absconders. On 12-2-2000 yet another challan was submitted in which the present applicants, Asif Ali Zardari, Akhtar Jawaid Pirzada were challaned as such. Present applicant was arrested on 11-1-1999. On 6-1-1999 his statement under section 164, Cr.P.C. Was recorded by Additional City Magistrate District Malir. It was after recording of this statement that challan dated 2-2-1999 was submitted and the present applicant was shown as one of the accused persons in custody. The trial lingered on from date to date and from year to year without in any way going near to recording of evidence, much less indecision. In 2008 accused Asif Ali Zardari filed an application under section 249-A, Cr.P.C. Vide order dated 24-3- 2008 that application was allowed and Asif Ali Zardari was acquitted of the charges. Application under section 249-A, Cr.P.C. Read with section 173(3) of, Cr.P.C. Was filed by the present applicant and an application 265-K, Cr.P.C. Was filed by the accused Muhammad Bilal Shaikh. Vide order, dated 15-11-2008 application filed by Muhammad Bilal Shaikh was accepted and he was acquitted of the charges. However, application of the present applicant was dismissed. AF far as Muhammad Bilal Shaikh is concerned whose application under section 249-A, Cr.P.C. Was allowed by the learned Special Judge Karachi Central the following were recorded as reasons for allowing that application.
"There is extra judicial confession alleged to have been made by accused Muhammad Bilal Shaikh and the witnesses in their 161, Cr.P.C. Statement stated that they were called at Police Station for whitewash purpose where accused was sitting in handcuffs under arrest and on enquiry accused disclosed that he was arrested as he has committed murder of Justice Nazim and his son. This extra judicial confession is not corroborated by any other evidence. Those persons were hired for the purpose of whitewash and were present at Police Station and found the accused in custody.
Since an extra judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction. Status of the person before whom the extra judicial confession is made must be kept in view. Reliance is placed on 2006 SCM R 231.
' Upshot of the above discussions in respect of case against accused Muhammad Bilal is that his date. Of arrest is doubtful as per complaint made by the mother of accused for his arrest and filing of constitutional petition, appointing of learned MIT for visiting to the concerned Police Station as per version of the applicant/accused. No public witness is taken for recovery of the weapon.
Though 26 witnesses are cited by the prosecution but there is no iota of evidence against applicant/accused to connect him with the commission of the offence. Five different challans are submitted by the Investigating Agency and names of applicant/accused does not transpire in the subsequent challan. It is also stated that accused Muhammad Bilal Shaikh is acquitted in 13-E Arm Ordinance case."
4. As far as, the present applicant is concerned, following reasons were recorded for rejection of his application.
"So far the case of accused Muhammad Babar Sindhu is concerned, he is not challaned in the first stage but subsequently after lapse of two years applicant/accused Babar Sindhu is arrested with Akhtar Jawaid Pirzada and then is implicated in the case and judicial confession of accused Babar Sindhu and Akhtar Jawaid Pirzada is recorded by the Magistrate. Since the judicial confession is got recorded as such there is evidence of judicial confession against accused Babar Sindhu, which requires evidence to be recorded in the case.
' So far the case of Muhammad Babar Sindhu is concerned his judicial confession is available on record as such at this stage it cannot be said that there is no evidence against him, hence in the circumstances it would be appropriate that let charge be framed against accused Muhammad Babar Sindhu and the evidence of the Magistrate be recorded. His application under section 249-A, Cr.P.C. Is dismissed."
5. The Criminal Revision Application has been filed to impugn and challenge the order passed by the learned Court below on 15-11-2008 in respect of application filed by the present applicant.
Learned counsel for the applicant made the following submissions:--
(1) That accused Asif Ali Zardari has been acquitted on 24-3-2008. Similarly Muhammad Bilal Shaikh from whom Kalashnikov was allegedly recovered has also been acquitted.
(2) That confession has been obtained from him after long delay. Delay is always fatal in case of confession. Learned counsel relied upon Mst. Zaitoon v. The State, 1979, PCr.LJ 279, Muhammad Naseer v. The State PLD 1988 Federal Shariat Court 58, Arif Nawaz Khan and 3 others v. The State PLD 1991 Federal Shariat Court 53 and Bahadur Khan v. Muhammad Azam and 2 others 2006 SCM R 373.
(3) It is a case of no evidence. No empties have been recovered and no independent witness has been cited in the challan.
(4) It is alleged that the present applicant under a conspiracy hatched by Asif Ali Zardari committed murder. Asif Ali Zardari has been acquitted vide order dated 23-3-2008, If the leading conspirator has been acquitted how can the tool be held guilty.
(5) That the present applicant has been facing trial for almost 12 years.
6. Learned counsel read from the order of acquittal passed in case of Asif Ali Zardari. He specifically referred to the following from that order:-- "On 6-1-1999 the police also got recorded the confessional statement of accused Babar Sindhu and Akhtar Jawaid Pirzada. However, both retracted from their confessional statement by moving application dated 15-5-1999, 28-12-1999. On 12-2-2002 police submitted final amended charge sheet before this Court showing Muhammad Babar Sindhu, Asif Ali Zardari and Akhtar Jawaid Pirzada as accused. Hence, this application.
The so-called confessional statement of both the accused have not been recorded in accordance with provisions under sections 164, Cr.P.C. And 265(J), Cr.P.C. And after observing necessary precautions and formalities. The confessions were not recorded by the Judicial Magistrate, having powers to do so, the same were recorded by an Executive Magistrate having no power to do so. No notice was given to the applicant as required under sections 164(1-A) and 265 (J), Cr.P.C. Neither the said statements were recorded in the presence of applicant nor he was given opportunity to cross-examine the persons making the statements, therefore, the so-called confessional statements cannot be used as substantive evidence against the applicant. Mr. Shahadat Awan has further contended that so-called confessional statements were recorded while accused Babar Sindhu and Akhtar Jawaid Pirzada were under arrest in some other case not arrest in this case and their signatures were obtained after giving them torture and maltreatment, therefore, the applicant cannot be convicted on sole basis of confession of fellow accused much less on retracted confession."
7. He also relied upon following observations in that order:-- "Here question arises "whether such retracted confessional statements of co-accused Babar Sindhu and Akhtar Jawaid Pirzada can be used against applicant Asif Ali Zardari.
' It is well-settled law that Court before acting upon a retracted extra judicial confession must inquire into all material points and surrounding circumstances to satisfy itself fully that the confession cannot but be true. As an extra judicial confession is not a direct evidence, it must be corroborated in material particulars before being made the basis of conviction. Status of the - person before whom the extra judicial confession is made must be kept in view joint confession cannot be used against either of accused. Extra judicial confession is always a weak type of insufficient evidence which can easily be produced, whenever direct evidence is not available."
8. There is no statement of any witness whatsoever to corroborate extra judicial confession which extra judicial confession has been retracted by the applicant.
9. Learned counsel submitted that extra judicial confession was recorded by an Executive Magistrate who was not competent to record such statement because he was Executive Magistrate and not a Judicial Magistrate. Learned counsel relied upon Muhammad Baqa alias Baqir v. The State 2000 PCr.LJ 465 and The State through A.G., N.-W.F.P, Peshawar v. Waqar Ahmad 1992 SCM R 950.
10. Learned Additional Prosecutor-General, made the following submissions:--
(1) Evidence against Asif Ali Zardari and acquitted co-accused Muhammad Bilal Shaikh was different. In case of Muhammad Bilal Shaikh there was only extra judicial confession and in case of Asif Ali Zardari there was no evidence of conspiracy or any judicial or extra judicial confession. In case of applicant there is confessional statement. During trial the Magistrate shall appear in evidence and so also Investigating Officer. Thus there is evidence and probability of conviction can not be ruled out.
(2) Under section 304, P.P.C. Qatl-e-amd can be proved by any of the two modes. One is confession under section 265-E, Cr.P.C. And other is through recording of evidence. Evidence can be of three modes direct evidence, circumstantial evidence and under section 164, Cr.P.C.
(3) Requirements of section 164 are that confession must be before a Magistrate, it must be a voluntary statement of truth and there must be supporting evidence. Learned APG submitted that confessional statement under section 164, Cr.P.C. Falls within the ambit of evidence specified in section 304(1)(b), P.P.C.
(4) Regarding confession before the Executive Magistrate, learned APG submitted that prior to 2001 Executive Magistrate also recorded confessional statement and in this case such statement was recoded on 6-1-1999 i,e, much prior to 2001.
(5) On 6-1-1999 when confessional statement of the present applicant was recorded he was already in jail. Consequently after recording confessional statement his arrest in the present case was effected.
(6) There has not been any element of force and coercion. It was purely voluntary statement.
(7) No doubt, supporting evidence is missing at this stage but it is premature to come to the conclusion that it is a case of no evidence. Learned counsel relied upon Ghulam Qadir and others v.
The State 2007 SCM R 782, Manjeet Singh v. The State PLD 2006 SC 30 and Nazeer alias Wazeer v.
The State PLD 2007 SC 202.
11. I have considered the submissions made by the learned counsel and have also gone through the record as well as case-law cited at the bar.
12. In Mst. Zaitoon's case (supra), facts were that the deceased and the petitioner had married in 1966. They were residing on first floor of a building. Another couple was residing on the same floor. It was alleged that in February, 1966 deceased divorced Mst. Zaitoon, but subsequently upon intervention of elders divorce was withdrawn and the deceased and Mst. Zaitoon started living together again. It was also alleged that in November, 1971 Mst. Zaitoon left the house and had gone to her parent's house and she returned to house of her husband. On 25-11-1971 at 1-30 a.m. Of the same night a Post Wardan of Civil Defence, found body of the deceased lying in the street. Matter was reported to police. Cause of death was shown as result of haemorrhage caused by a vehicle accident. Police submitted final report to the Magistrate praying that on account of non- availability of evidence, case may be disposed of by summary order. Meanwhile a Direct complaint we filed in which it was alleged that the complainant has been murdered in the house by unknown person with active participation of his wife, Mst. Zaitoon. Complaint was dismissed under section 203, Cr.P.C. Against which order application under section 561-A, Cr.P.C. Was filed in the High Court.
High Court observed that even if all the evidence relied upon in the complaint is believed it did not establish commission of offence by the petitioner. Revision was consequently dismissed.
13. In Muhammad Naseer's case (Supra) before the Federal Shariat Court, one Mst. Farhat had died and was buried in a graveyard. Next day father of Mst. Farhat received information that dead body of his daughter was not in the grave. He went to the graveyard and found naked dead body of his daughter lying at a distance under the cover of a wall. He lodged F.I.R. With police. Medical report indicated that the corpse has been subjected to sexual intercourse after her death. The accused in his statement under section 342, Cr.P.C. Denied entire prosecution case. He also denied that he had made a confession before Magistrate and stated that Magistrate had obtained his thumb- impression on a blank paper. Federal Shariat Court observed; "it may further be noted that confession, in case of Zina for the purpose of Hadd sentence, must be made four times in four different meetings and the accused should be free from any outside influence, pressure, coercion or duress.
' It means that the confession must be independent and should be made because of fear of Allah and the Hereafter, in order to purge him of the effect of the offence It must be made before a Court of competent jurisdiction....And extra judicial confession, therefore is not to be taken as confession but just statement of the witness that he heard the accused saying that he had committed an offence. Such an evidence must be corroborated by other evidence and circumstances of the case if it is to be considered to impose Tazir punishment. However, if a confession is against the circumstantial evidence it would not apply to impose Hadd sentence."
14. In Arif Nawaz Khan's case (Supra) facts were that the accused was arrested on 8-8-1998 and twice the remand was taken for three days and on the day when the second remand was going to expire accused was alleged to have been produced before the First Class Magistrate. Thus, confession was recorded after 6 days. The Federal Shariat Court held that delay in recording confession remained unexplained. It, therefore, held that it could not be certain that confession was voluntary.
15. In Muhammad Baqa @ Baqir's (Supra) case it was a case of an offence under section 302, P.P.C.
There was some previous enmity between the parties. It was alleged that Muhammad Baqir opened fire upon the deceased. Tehsildar recorded confessional statement of the accused although there was a Magistrate working at the place where offence took place but the accused was taken to another town where his confession was recorded and there was no explanation from the prosecution as to how the accused was not produced before SDM or Judicial Magistrate of the area but was taken to the Tehsildar. The High Court observed that perusal of confessional statement and the appended certificate indicated that the same had not been recorded in accordance with the provisions contained under sections 164 and 364, Cr.P.C. Which are mandatory in nature. The Court held that non-compliance of mandatory provisions of section 364, Cr.P.C. Is not a mere irregularity which is curable but is an illegality which is not curable. It also observed that the conditions for accepting confession as admissible evidence against the person making it are much severe and strict according to the Shariah.
16. In Waqar Ahmad's case (supra), the Supreme Court observed as under:-- "The learned High Court has discarded the confession of the appellant on the ground that "though the retracted confession of the appellant remained uncorroborated by any independent evidence as a rule of prudence there should have been some independent evidence in support of the retracted confession which we notice is not available in this case". When an accused has given an account of the incident and its truth is not doubted and such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration. There is no basic difference between a confession or a retracted confession, if the element of truth is not missing. It is always a question of fact which is to be adjudged by the Courts on the attending circumstances of a particular case. In this case, we have come to the irresistible conclusion that the confessional statement of the accused is true and voluntary and conviction could be recorded on such statement."
17. In Bahadur Khan's case (Supra) supplementary challan was submitted against the respondents for hatching criminal conspiracy for murder of the deceased and for harbouring co-accused. This challan was directly submitted in the trial Court after lapse of 5 years after decision of the High Court in criminal appeal, criminal acquittal appeal and criminal revision petition preferred against the judgment of the trial Court in a murder case. The Supreme Court held that the trial Court having become functus officio could not upon submission of supplementary challan take cognizance of the offence within the meaning of section 190, Cr.P.C. And proceed with the trial of the case.
18. On the other hand, learned APG relied upon first of all Ghulam Qadir's case (supra). The Supreme Court laid down the law in the following words:-- "The confessional statements of the appellants were recorded by the Magistrate on 22-8-1998, seven days after their arrest. Undoubtedly some delay was caused in recording these statements.
Delay in recording judicial confession becomes relevant to determine its voluntaries. However delay, without more, does not render the confession involuntary. (See Muhammad Yaqoob v. The State 1992 SCM R 1983). The Magistrate (P.W.10) recording the confession had complied with all the formalities required under the law to ensure that the accused were making confessions voluntarily.
Nothing has been brought on the record by the defence that would reflect upon the voluntariess of the confessions. The appellants' confessions therefore, cannot be thrown out simply because the same were recorded seven days after their arrest."
19. In Manjeet Singh's case (Supra), the following principles were laid down by the Supreme Court:-- "The Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out the truth in such reason before making use of the confession for conviction.
16. This is settled law that a retracted confession either judicial or extra judicial, if is found truthful and confidence-inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration.
18. There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and volunariness of the confession but it is not an inflexible rule that independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness.
23. There is no rule of criminal administration of justice that the Court having found the retracted confession voluntary and true, must also look for the corroboration and in absence of corroborative evidence conviction cannot be maintained. The retraction of a judicial or extra judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction because the evidentiary value of a confession is not diminished by mere fact that it was retracted by the maker at the trial and thus the independent corroboration from other source direct or circumstantial, cannot be insisted in every case as a mandatory rule rather the rule of corroboration is applied as abundant caution and in a case depending entirely on the confessional statement of a person or only of the circumstantial evidence, this rule is applied more cautiously."
20. Last case relied upon by the learned APG was that of Nazeer alias Wazeer (supra). It was laid down by the Supreme Court in this case as under:-- "In a murder case, an accused can be awarded sentence of death under section 302(a), P.P.C. As Qisas on the basis of judicial confession if it is not subsequently retracted and in a case in which the judicial confession is retracted if the same is found true, voluntary and confidence-inspiring, can be considered sufficient evidence for conviction and sentence for a murder as Tazir and since the appellant retracted the confession, therefore he was awarded sentence of death under section 302(b), P.P.C,. As Tazir. In the light of above rule of evidence in Islam, it is found that the principle of English law that an accused while appearing before the Court is not bound to speak truth, is not in consonance with the concept of criminal administration of justice in Islam according to which a Muslim whether an accused or a witness, must speak truth and must not tell a lie in his statement recorded by a judicial officer on oath or without oath and we hold that a person facing the charge of an offence under Hudood Laws if confesses his guilt before a Magistrate and his confessional statement even if is recorded on oath, can be used as a legal evidence, subject to the test of its being true and voluntary."
21. Above case-law appears to indicate that position in respect of confessional statement to be as follows:--
(1) Judicial confession must be before an authority competent to take such confession.
(2) Extra judicial confession is not to be taken as confession but just statement of witness that he heard the accused saying that he had committed the offence. Such evidence must be corroborated by other evidence and circumstances of the case.
(3) Judicial confession must be recorded promptly and as soon as possible and if there is delay in recording judicial confession there must be given reasons for such delay.
(4) Delay in recording confession may be relevant for determining its voluntariness. However, delay without more does not render confession involuntary.
(5) While recording extra judicial confession provisions of sections 164 and 364, Cr.P.C. Must be strictly followed because these provisions are mandatory.
(6) Violation of provisions of section 364, Cr.P.C. Is not a mere irregularity which can be cured. It is a illegality which goes to the roots of the confession and destroys its evidentiary value.
(7) Conditions for accepting confession as admissible against the person making it are much more severe and strict in Shariah.
(8) When an accused has given an account of incident in judicial confession his truth is not to be doubted and if such statement is proved to be correct in all its parts, such solitary piece of evidence can be used against the accused without any further corroboration.
(9) There is no basic difference between a judicial confession and a retracted judicial confession, if the element of truth is not missing from them.
(10) If a confession is retracted the Court must consider the reason for retraction of the confession to find out the truth in such reasons and in such a confession.
(11) A retracted confession either judicial or extra judicial, if it is found truthful and confidence- inspiring and also qualifies the test of volunariness, can be used for conviction without looking for any other sort of corroboration.
(12) A retracted confession can be legally taken against the maker, if the confession is found true and voluntary and can in certain situations be used as solitary evidence for conviction.
(13) It is not certain that in every case Court must look for corroboration of facts stated in retracted confession.##TE#
22. All the case-law cited by the learned counsel is in respect of final decision in cases and decisions have been rendered and recorded after evidence was led and the Court sifted truth from falsehood. None of the case-law cited at the bar was not in respect of voluntariness to be attached to a confession which has retracted and in a matter relating to decision on an application under section 249-A, Cr.P.C. Or 265-K, Cr.P.C. Obviously when a matter is being finally decided the evidence is already recorded and it is on the touchstone of that evidence that the Court is required to test veracity or otherwise of a retracted judicial confession. However, on an application under section 249-A, Cr.P.C. For decision under section 265-K, Cr.P.C. The Court does not have available to it the evidence. Thus, whetstone for testing veracity of a confession, whether judicial or extra judicial, whether retracted or not retracted is not available to the Court while deciding such application. On the other hand, when the matter is finally decided, the Court has available to it, evidence on the basis of which it can arrive at a conclusion in respect of what is stated in a confession, its voluntariness and values to be attached to its retraction.
23. In the present case, there is an extra judicial confession. Whether the confession was voluntary or not can be seen after evidence is recorded and the Magistrate who recorded the confession and the Investigating Officer and such other witnesses as may be produced or produced in Court. That stage unfortunately, I would say so as more than 11 years have passed since recording of confession, has not yet come.
24. Acquittal of accused Asif Ali Zardari can have effect only to the extent of question of conspiracy.
However, as far as, allegation that the present appellant was one who perpetrated the crime is concerned, that issue is yet to be tested on the basis of evidence. For the same reasons observations in respect of confession by the present applicant in the order of the Court which acquitted Asif Ali Zardari would not be relevant to the case of present applicant because this particular question was not directly in issue.
25. It was also contended by the learned counsel that confession has been recorded after almost three years of the murder having taken place. It was contended that the present applicant was arrested in another case and it was while he was in jail in another case that it is stated that he gave the voluntary confession. As observed above, delay per se does not destroy evidentiary value of a confession. It is only one of the factors to be considered by the Court for arriving at conclusion as to voluntariness or otherwise of the confession and that conclusion can only be arrived at after evidence is recorded. Similarly contention by the learned counsel was that confession was recorded by an Executive Magistrate and was therefore not a valid confession. He is this regard relied upon Muhammad Baqa alias Baqir's case (Supra). As reproduced above confession in that case was recorded by Tehsildar and there was no explanation from prosecution as to why the accused was not produced before SDM. Three points may be noticed: firstly, the stage for providing such an explanation has not yet come in this case secondly, even in the report itself the Court observed that why he was not produced before Sub-Divisional Magistrate and lastly it has been argued by the learned APG that this confession was recorded in 1999 whereas complete separation of Executive Magistrate from Judicial Magistracy took place in 2001.
26. The trial Court has observed that at this stage there is some evidence, howsoever tenuous it may be, which prima facie accuses and connects the present applicant with the offence. In my opinion, the truth and veracity as well as voluntariness of the confession can only be ascertained and determined after evidence is recorded.
27. For the above reasons, this Criminal Revision Application is dismissed. Let R and Ps be returned to the trial Court and trial Court is directed to record evidence expeditiously. After evidence of the Magistrate and the Investigating Officer has been recorded, the applicant shall be entitled to file fresh application before the trial Court.