' SHAFIID ANWAR BAJWA, J.---Appellants Muhammad Imran, Muhammad Hanif and Muhammad Ashraf were tried along with Muhammad Wasim Akhtar, Sharib Arsalan and Muhammad Jamil for an offence under sections 102-B, 302 and .324, P.P.C. And section 7(a)(b)(i) of Anti-Terrorism. Act, 1997. Muhammad Jamil was acquitted on an application under section 265-K, Cr.P.C. Vide judgment dated 15-1-2008 while accused Muhammad Wasim Akhtar and Sharib Arsalan were acquitted vide the impugned judgment. The present three appellants were convicted and were sentenced as under:-- "(1) for offence under section 120-B, P.P.C. r/w section 7(a) ATA 1997 and 302, P.P.C. To 'Imprisonment for Life' and to pay fine of Rs,100,000 each, in default of payment of tine, they shall suffer six months'
R.I. More.
(2) For offence under section 324, P.P.C. r/w section 7(b) ATA 1997 to five years' R:I. And to pay fine of Rs, 10,000 each, in default of payment of fine, they shall suffer six nionths' R.I. More.
(3) For offence under section 7(i) ATA 1997 to five years' R.I. Each. ".
2. The present appellants were initially arrested in connection with F.I.R. No,107 of 2002 lodged at the instance of S.-I. Ali Goliar Soomro at Police Station Civil Lines, Karachi alleging that on 14-6-2002 when he was on duty regarding security at American Consulate, at 1115 hours a Toyota Corolla, a Suzuki High Roof and other vehicles were proceeding one following the other there was a blast due to which several vehicles were damaged. On the basis of said report,. Case was registered and investigation was taken up and the accused persons were charged with various offences. Anti- Terrorism Court on the basis of confessional statements of Muhammad Hanif and Muhammad Imran, _medical evidence and evidence of identification came to the conclusion that prosecution had established its case against Muhammad Hanif, Muhammad Imran and others and consequently sentenced Muhammad Hanif, Muhammad Imran and others to suffer imprisonment of death as well as fine. Other punishments were also imposed on them for various offences. Being aggrieved by the judgment appeal was filed by the convicted accused person in the Sindh High Court. Appeal was also filed by the Province of Sindh against acquittal of Muhammad Ashraf.
Appeals filed by Muhammad Imran, Muhammad Hanif were accepted by the Sindh High Court.
Such decision was challenged in the Supreme Court and the Hon'ble Supreme Court up-held the order passed by this Court.
3. While they were arrested in connection with the above F.I.R., and they were still in custody, on 9- 7-2002 they were also arrested in connection with F.I.R. No, 94 of 2002 and on 17-7-2002 confessional statements of appellant Muhammad Imran and Muhammad Hanif were recorded and on 27-7-2002 confessional statement of the third appellant Muhammad Ashraf Khan was recorded.
4. The case of the prosecution is that on 26-4-2002 when the motorcade of the then President of Pakistan was on its way to Quaid-e-Azam International Airport, and as it passed by a block of flats under the name of Falak Naz Apartment, the present appellants in conspiracy with each other having purchased a vehicle from Saddar Karachi as well as a remote control apparatus, having loaded with explosive substance weighing 400/500 kilograms on the Suzuki High Roof and connected the same with 'remote control system parked the explosive laden vehicle at the footpath of Shahrah-e-Faisal, in front of Falak Naz Apartment. As the motorcade of President of Pakistan passed by Falak Naz Apartment, absconding accused Kamran, switched on the remote control so as to cause explosion of the vehicle with an intention of committing, Qatl-eAmd of the then President of Pakistan. However, remote control did not work.
5. After the charge was framed the appellants were convicted by the trial Court vide judgment dated October 18, 2003 and sentenced to imprisonment for life etc. That judgment was challenged in Special Anti-Terrorism Appeals Nos. 53, 54 and 55 of 2003 and this Court vide judgment dated 10-11-2006 accepted the appeal by holding that proceedings of the case from the stage of charge are illegal as it had caused prejudice to the appellants and occasioned a failure of justice, which could not be cured under section 537, Cr.P.C. Consequently the matter was remanded for re-trial from the stage of charge for offence mentioned in Clause 3 of third Schedule attached to the Anti- Terrorism Act, 1997 r/w section 7(a) of the same Act and section 120-B, P.P.C., r/w section 302, P.P.C.
6. After the matter was remanded the charge was refrained and after trial impugned judgment was passed on 15-1-2008. The present three appellants were convicted and sentenced as detailed above.
7. Learned counsel for the appellants made the following submissions:-
(1) The only piece of evidence on which conviction has been based by the trial Court is the confessional statements by the present appellants. Such statements have remained uncorroborated. No reliance can be placed on an uncorroborated retracted confession. Learned counsel relied upon Imran Bashir Farooqi v. The State 1990 PCr.LJ 677, Naqibullah and another v. The State PLD 1978 SC 21, Abdul Razzaq v. The State PLD 2008 Lah. 544, Mah Gul v. The State 2009 SCMR 4.
(2) Even otherwise confessions were typed by a typist and were merely signed by Magistrate. On the record it is not stated that any warning was given to the appellants that whether they admitted or not, they would not be remanded to police custody. Learned counsel relied upon State through Advocate General Sindh v. Muhammad Hanif, Criminal Petition No, 88-K of 2006, decided by the Hon'ble Supreme Court on 20-12-2006.
(3) Shahrah-e-Faisal is the main road and it has been a long, established practice that no vehicle is allowed to be parked by the road side when a VVIP motorcade is to pass. No evidence has been produced to establish as to how for hours a Suzuki High Roof was permitted to be parked on the footpath when motorcade of the President of Pakistan was to pass that way.
(4) No evidence has been collected as to what happened to the vehicle, from where the explosive were purchased, there did the explosive go after the botched attempt, from where the remote control devise was purchased, what happened to the remote control devise, after all these loose hands have not been answered by the prosecution.
(5) The appellant have been in custody for more than a month and thereafter so called judicial confession was recorded. In such circumstances judicial confession cannot be said to be voluntary. Learned counsel referred to a telegram sent by father of the appellant Muhammad Imran to the Chief Justice of Sindh Court on 18-7-2002 alleging that his son was being detained in Central Prison and despite his hectic efforts authorities had refused to arrange a meeting between his son and his counsel. It was further stated that his son is being pressurized to give confessional statement in different cases. Learned counsel also referred to a writ petition filed by mother of appellant Muhammad Hanif (C.P. No, 1057 of 2002) on 25-6-2002 wherein she stated that her son had been picked up by the police on 18-6-2002 and since then she did not know whereabouts of her son. On this petition notice was issued to the State on 26-6-2002. On 2-7-2002 Additional Advocate General stated that due to some misunderstanding he could not acquire the appropriate information The petition was dismissed as having become infructuous after the confession was recorded.
(6) While concluding his arguments, learned counsel submitted that the appellants have been in jail for 8 years and therefore Provincial Government should be ordered to pay compensation of Rs,100,000 to each one of them.
8. Learned Deputy Prosecutor-General made the following submissions:--
(1) That the confessional statement is not the sole piece of evidence in this case. Corroboration is available in terms of evidence of PW.2.
(2) At the time when offence was committed the State had no knowledge about the offence having been taken place. State acquired knowledge only after confessional statements of the appellants were recorded.
(3) Since after recording confessional statement under section 164, Cr.P.C. Accused were sent to judicial custody, no recovery could be effected.
(4) That the confessional statement has been recorded without pressure and is voluntary.
Therefore standing alone it is sufficient for recording conviction against the appellant in spite of its retraction. Learned counsel relied upon Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944, Ashfaq Khalid v. The State PLD 2005 Quetta 1, Shaikh Muhammad Amjad v. The State PLD 2003 SCMR 704, Muhammad Azam and others v. The State 2006, PCr.LJ 62 and Manjeet Singh v. The State PLD 2006 SC 30.
9. We have considered the submissions made by the learned counsel and have gone through the record as well as case law cited at the bar.
10. Since the sole question is as to whether reliance can be placed on a retracted confession and if yes, what are the parameters and paradigms of such reliance. In Imran Bashir Farooqi's case (supra), facts were that one Mst. Zahida Bibi aged about 13 years, a maid servant of one Fazal Khan at his house was found hanging with a rope and was found dead. Accused was produced before the Magistrate and his confessional statement was recorded. This confessional statement was subsequently retracted by him. Regarding the value of a retracted confession, it was observed as under:-- "It has been pointed out further that the judicial history presents abundant warning against the danger of placing too much reliance on uncorroborated and retracted confession and retracted confession is a source of anxiety to those who have to see that justice is properly administered. In the instance case the confession has been retracted at the trial. It was pointed out by me in Mst.
Zubaida's case reported in PLD .1986 FSC page 268(273.E) that the retracted confession in Islam has never been a basis of conviction against an accused person."
11. In Naqibullah's case (Supra), accused was kept in custody for 7 days before recording confessional statement and there was no explanation for such delay. There was no evidence that the Magistrate satisfied himself about cause of delay before recording confessional statements nor did he put any question to accused whether they were tortured by police during, their arrest.
Reasons for making confessions were also not inquired into. It was held that inadvertent lapses on the part of Magistrate would not be sufficient to disbelieve Magistrate on this point. However, it was observed by the Supreme Court as under:- "23. In Queen v. Thompson (I) Cave, J. With his usual clarity has laid down some of the tests for the admissibility of the confessions on criminal cases. According to him a confession to be admissible must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by persons in authority, it is inadmissible.
The material question consequently is whether the confession has been obtained by the influence of hope or fear. The Judge will require the prosecution to show "affirmatively" to his satisfaction, that the statement was not made under the influence of an improper inducement, and who in the event of any doubt subsisting on this head, will reject the confession. He observed that " the rule laid down in Russel on Crime is that confession, in order to be admissible must be free and voluntary, that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however, alight, nor by the exertion of any improper influence" and added that if these principles and reasons for them are, as it seems impossible to doubt, well- founded, they afford to Magistrate a simple test by which the admissibility of a confession may be decided. In conclusion Cave, J. Strongly suspected the retracted confessions, particularly when the proof of the prisoner's guilt is otherwise not clear and satisfactory. In that connection he remarked:- - "I would add that for my part I always suspect these confessions, which are supposed to be the off spring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory: but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; a desire which vanishes as soon as he appears in a Court of justice."
' While concluding Hon' ble Supreme Court held as under:- "27.. Applying these principles to the instant case, in order to sustain the convictions of the two accused, prosecution must establish that the two confessions in question are true and are also sufficiently corroborated by material particulars from the other evidence on the record. Now comparing these confessions with the rest of the evidence on the record; the prosecution has failed to adduce any direct or sufficient circumstantial evidence to connect the appellants with the crime and to inculpate 'them for the murder of Abdul Rahman deceased. According the two confession statements Banaras, Zahid, Shamrose and Nawshad were sitting at a distance of 20/25 paces from the place or at the time of occurrence. In the confession of ----Wasim Khan it is further stated that on the alaram raised by Abdul Rahman deceased. The four witnesses actually came to them at the spot. On this Naqibullah accused told them that in case anybody were to enquire from them about Abdul Rahman deceased, they should inform him that he had died by drowning in the river. In the confessional statement by Naqibullah it also stated that at the time clothes worn by him got blood stains on them and he had, therefore, to change them."
12. In case of State v. Muhammad Haneef and others, Criminal Petition No, 88-K of 2006 (case in which the present appellants were accused of having caused bomb blast at American Consulate); regarding the confessional statement, the Supreme Court held as under:- "10. The other piece of evidence relied upon by the prosecution to establish its case consists of judicial confessions of respondents Muhammad Hanif and Muhammad Imran. From a bare perusal of judicial confessions it is sufficient to conclude that the Magistrate had acted in complete disregard of the legal requirements for recording. Judicial confessions and was either unaware of the same or had knowingly flouted such provisions and requirements. The judicial confessions have been recorded in English language in question and answer form. There is no certification from the concerned Judicial Magistrate that respondents Muhammad Imran and Muhammad Hanif had knowledge of English language and were able to understand the questions put to them in English for giving a proper reply or that the questions were translated and explained to respondents in the language which they understand fully well and the replies given by them in their own language were translated and written in English language. Apart from the above glaring, irregularity it is also to be found that the Judicial Magistrate had not taken care of other very material and necessary requirements and conditions to be fulfilled for recording the judicial confession. For example he did not himself physically examine the accused persons to verify that they were not maltreated or tortured in spite of vehement claims made by the respondents to have been physically beaten and tortured for agreeing to make confessions. He also did state in his examination in chief whether the statement recorded by him were read over to the respondents in the language which they understood. Apart from the above illegalities and irregularities, it is not noted that the concerned Judicial Magistrate did not make any efforts to find out the dates on which the two respondents were taken into custody and where they remained during the long period which elapsed between their custody and recording of confessions. In the circumstances, the High Court was justified in rejecting and discarding, the judicial confessions as they were not recorded in strict compliance of law and suffer from illegality rendering them as not worthy of credence being contrary to law."
13. In Abdul Razzaq's case (Supra), facts were that on 14-10-2002 dead body of deceased victim was found lying in the cotton field. P.W.14 informed the police about the presence of dead body.
Dead body was taken to hospital, where it was identified by son-in-law of the deceased. Thereafter criminal case was registered. It was stated by the complainant that the deceased went to another village to collect rent from tenant. When she did not return they checked here and there and then they received information about a dead body being brought to the hospital. Appellant was in police custody in another F.I.R. Registered at the police station and during investigation he made disclosure that he had also committed murder of Mst. Haneefan Bibi after committing Zina with her. Confession statement was recorded under section 164, Cr.P.C. Before Illaqa Magistrate. On 23- 3-2003 the appellant got recovered a trap made of rubber, use of which rendered the woman physically helpless. High Court rejected contention of the Prosecutor General that confessional statement under section 164, Cr.P.C. Would itself be a source of corroboration to the extra judicial confession. Thereafter the High Court laid down the law as under:-- "(14) A statement recorded under section 164, Cr.P.C. Shall not invariably be invalidated or inadmissible if recorded during the period when a person is in police custody, yet such confessions have often been held to be involuntary when accused was kept in police custody. The minimum that is required in such a case is that such confession must be duly corroborated by some relevant evidence and circumstances of the case, especially when as per version of the appellant he was in police custody for so many days prior to his formal arrest. In case the statement of the appellant has to be considered it should, in the absence of very convincing reasons, be taken in totality. The statement of the appellant simply consists of the narration of the events in which he committed offence alleged against him. It does not consist of any such part which may have to be sifted from the other for the determination of the truth: It has to be disbelieved or has to be relied upon as whole. Thus if the accused was already in police custody for a number of days the veracity of the confession by itself would become doubtful. Such confession would thus be inadmissible under the law.
(15) There is still another aspect of the matter. The appellant has not adhered to the alleged confessional statement. He retracted from the same as soon as he had an independent opportunity before the learned trial Court. He denied the charge and also retracted from the confession.
(16) The retracted confession all the more needs very strong corroborative evidence. It was held in Muhammad Hanif v. The State 1995 PCr.LJ 985 that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction on its strength alone. The statements under section 164, Cr.P.C. Have never been taken by the Courts as a gospel truth. The Courts have to look into and have always been demanding for evidence before convicting the accused for a capital punishment notwithstanding that the accused had confessed the guilt. Reliance in this behalf can be placed on Nadir Hussain v. The Crown 1969 SCMR 44.
(17) Where the extra judicial confession or even the confession under section 164, Cr.P.C. Is inherently defective or incompetent, the corroborative evidence of howsoever high quality cannot injec vigour or life in such confession. The reason is more that obvious. The corroborative evidence is required to supplement the strength of the circumstantial evidence and to make complete link between various -events comprising the circumstantial evidence. The corroborative evidence is not am cannot be a substitute for the facts which are to be established any direct or circumstantial evidence. Direct and circumstantial evidence has to stand on its own legs and the corroborative evidence shall only be supplementing or adding to its credibility. Thus where the evidence or the confession itself suffers from inherent infirmity, it cannot be accepted or relied upon to bring home the guilt of an accused because corroborative evidence is never a substitute of the primary evidence.
(18) This is where the evidence in this case lacks quality needed to prove the guilt of the accused.
As already stated the extrajudicial confession is not worthy of independent reliance nor the statement under section 164, Cr.P.C. Is by itself enough to establish the charge against the accused.
(19) The evidence of the movie-maker for the video of the confessional statement of the appellant is also of no use as it was recorded while the appellant was in police custody and the circumstances do not show that it was independent, voluntary and of such quality that it could be accepted in spite of the fact that the accused was at that time in actual police custody.
(20) Above all there is another farcical situation which shows how the police manoeuvered the extra-judicial confession. This also would be indirectly causing aspersion on all the aspects of the case including the veracity of the statement under section 164, Cr.P.C. The case of the prosecution is that the accused was arrested on 14-2-2003 and prior to it the appellant had confessed his guilt before Muhammad Ibrahim and Inayat. P. Ws. On 13-2-2003. The version of the appellant has throughout been that he was arrested by the police almost 5-6 days prior to the alleged statement under section 164, Cr.P.C. On the record of the learned trial Court various press clippings/newspapers are available wherein the police tried to publicise its efficiency for digging out blind murders/rape cases and in that context it showed that it had arrested the appellant as a serial killer. Even the DPO, Bahawalpur tried to take the credit through a press conference which was published in the daily national newspapers on 15-2-2003 and 18-2-2003.
(21) It, however, either failed to take the notice or just ignored it that in the Daily newspaper "Khabrain" and "Jong" dated 11-2-2003 a news was prominently flashed showing that the appellant had been -arrested as a serial killer. These newspapers are available on the record of the learned trial Court as Mark-A and Mark-B. Besides unmarked and un exhibited newspapers,' photocopies of the newspaper clippings are also available on the record, appropriate notice whereof has also been taken by us. These clearly belie the whole police version. The appellant was already in police custody when the extra-judicial confession dated 13-2-2003 before Muhammad Ibrahim and Inayat was concocted. Similarly this also has direct bearing on the credibility of the statement under section 164, Cr.P.C. Which was recorded on 15-2-2003. While the appellant was in police custody since 9-10-2003 the confinement of the appellant in the police custody for such a long time prior to the confession under section 164, Cr.P.C. By itself is sufficient to destroy the prosecution case established with reference to this statement because such statement could not be termed as voluntary and with the free consent. This has rather totally supported the version of the appellant pleaded in his defence."
14. Lastly learned counsel for the appellant relied upon Mah Gul's case (supra). Fact of this case were that report was lodged by A.S.-I. Stating that when a police party reached at the place of occurrence few persons armed with Kalashnikovs appeared from a dilapidated Kotha. One of them fired at the moving jeep. .Consequently S.H.O. Sustained injuries, the culprits fled. Injured S.H.O.
Succumbed to his injures. The Supreme Court observed as under:- "10. After taking out from consideration the ocular evidence, we are left with the belated retracted confessional statement of the appellant and the evidence of recoveries only which being purely of corroboratory in nature, in our view, are not capable to bring home charge against the appellant in the absence of direct evidence. In the case of Bahadur Khan v. The State PLD 1995 SC 336, it was held by this Court that unless a retracted confession is corroborated by independent cogent and clear evidence it is not prudent to base conviction on its strength alone. It is well-settled that unless substantive or direct evidence is available conviction cannot be based on any other type of evidence howsoever, convincing it may be. This view receives support from the following reported judgments:--
(i) Qalb-e-Abbas alias Nehola v. The State 1997 SCMR 290; (ii) Muhammad Noor v. Member-I Board of Revenue and others 1991 SCMR 643, (iii) Ali Muhammad v. The State 2005 YLR 3357 and (iv)
Abdul Sattar v. The State 2008 MLD 619."
15. On the other, hand, learned D.P.-G. Relied upon Daulat Ali's case (supra). Facts of this case were that Muhammad Aslam respondent appeared before the police and made his statement wherein he stated that he was cultivator by profession and when he was busy along with his ,family members cutting wheat crop outside the village, his daughter committed suicide by burning herself. He stated that when he came to his house he saw some people gathered there and saw that dead body of his daughter was lying in a room of his house. His brother's wife and nephew who also happened to be husband of the deceased were present there and they told him that the deceased after closing the door had set herself on fire and committed suicide. Complainant stated that he had enmity with no one The police after preparing injury statement sent the dead body to the hospital for postmortem. The I.O. Noticed that view expressed by the Medical Officer was that injuries found on the dead body were caused by some other person and probably with a sharp edged weapon. Chemical Examiner's Report also indicated that deceased was subjected to rape.
The police also recovered some blood stained items which had been buried under the floor of the room in which the deceased was stated to have committed suicide. During the course of investigation grave of the deceased was opened and then dead body was identified to be that of one Mst. Tahira D/o Daulat Ali. At the trial confession was made by the two accused persons, which confession was subsequently retracted. The Federal Shariat Court observed as under:-- "Regarding the validity of confessions, law is well-settled now. Repeatedly, it has been laid down by the superior Courts that if a Court believes a confession, judicial or extra-judicial, retracted or unretratced, to be voluntary and true, it can convict the accused on its sole basis. It is entirely a different matter, that since extra-judicial confession is such type of evidence which can always be procured easily, therefore, the Courts have always treated the same as suspicious piece of evidence and have emphasized the necessity of great care and caution in acting upon it. As a matter of law, no corroboration of a confession is needed. The rule of law is that the confession is a relevant fact and that it is for the Court to determine its value keeping in view the circumstances of each case, therefore, it can be safely concluded that where relevancy of the confession is established then evidentiary value thereof would be a matter of prudence only, rather than of law.
Reference in this behalf may be made to the case State v. Minhum alias Gul Hasan reported in PLD 1964 SC 813 wherein the Hon'ble Supreme Court of Pakistan has been pleased to categorically observe as under:-- "As for the confessions the High Court, it appears was duly conscious of the fact that retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. It is now well settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question; which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J. In his commentary on the law of Evidence at page 168 (Vol.1) it is settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true' ."
' In the instant case, the extra judicial confessions, made by both the male accused persons, were proved to be voluntary and true, at the trial and the same were duly corroborated by the medical evidence, recovery of crime weapons, last seen evidence, other recoveries including the last-worn clothes of the deceased as well as Parna of accused Mst. Riffat (respondent No,3) with which the deceased's hands were found tied and the fact that the deceased before her death was subjected to zinc, were sufficient to prove the charge of murder against the accused particularly, when neither any enmity was alleged against the prosecution witnesses nor it was pleaded that they have had any motive to falsely implicate the accused persons."
16. In Ashfaq Khalid's case (supra), the Chairman NAB filed a reference against the appellant and co-accused Pervaiz Zaki wherein it was alleged that appellant was posted as Senior Accounts Officer, Revenue Office PTCL, Quetta and co-accused Pervaiz Zaki who was cashier, withdrew an amount over a period of 7 years for payment towards fare of vehicles hired for the purpose of disconnecting telephones. However on investigation and inquiry irregularities were found.
Regarding the delay in the recording of confession, it was observed as under:-- "It is suffice to observe that the delay simpliciter is not sufficient to discard a confessional statement which otherwise is found true and voluntary."
' Regarding evidentiary value of confession, it was observed as under:- "Similarly the contention of the learned counsel that the confessional statement of co-accused is not a substantive piece ofevidence to base conviction of the appellant, has no force in the peculiar facts and circumstances of the present case. There is no cavil with the proposition that confession of accused should not be made sole basis for conviction of co-accused but in the instant case there is sufficient other evidence on record, as discussed above, corroborating confessional statement of the co-accused, therefore, in our considered view the same can be relied upon as a strong circumstance against the appellant."
17. In Shaikh Muhammad Amjad's case (supra), it was observed as under- "In criminal cases great responsibility rests upon the Courts to determine if the confession is voluntary and true or is lacking within the scope of either term "voluntary" and "true". If the confession directly or indirectly is the result of inducement, threat or promise from a person in authority, it would be treated as not voluntary. Voluntary and true are two different terms related with confession and each of them has its own significance. A confession, which is voluntary, is admissible in evidence even though it may be incorrect in its comments. As against above, a confession, which is not voluntary, is not admissible though it may be true, whether a confession is voluntary and true is a question of fact and is to be determined keeping in view the attending circumstances of each case. Voluntariness of confession and of being true are totally distinct.
Voluntariness relates to its admissibility, while its truth is looked into for the purpose of assessing its value. Therefore, for proving confession it shall be both voluntary and true."
18. In Muhammad Azam's case (supra), facts were that the I.O. Received telephonic information that a dacoity had been committed and that two persons had been murdered. On receiving information he went to the hospital and prepared Inquest Report. The witness stated to him that a car was parked in front of a shop from which three persons came out and entered the shop while one person remained sitting on driver's seat of the car. Thereafter firing -took place and the three culprits sat in the car and drove away. One of the three culprits was recognized by him. When I.O.
Went in search of the accused persons four persons were found riding on Motorcycle. On seeing the police they turned and started firing at police, which firing was retaliated and then police chased them. Then he was told that two persons alighted from the Motorcycle and boarded a water tanker, one party chased water tanker and other chased Motorcycle. When first party reached close to the water tanker started firing with a pistol which fire was retaliated. Then two accused alighted from the tanker and started running, one was over powered and arrested.
' He gave an extra-judicial-confession. On his pointation the car was recovered and on the basis of information provided by him, other persons were arrested. Since the first arrested person was injured, he Was treated in hospital and upon his discharge he was produced before a Magistrate and his statement 164, Cr.P.C. Was recorded. This confession was duly retracted. The High Court reproduced the observations of the Supreme Court in the case of Choudhry Muhammad Yaqoob and others v. The State 1992 SCMR 1983, which observations were as under:- "(19) From the above cited cases, inter alia, the following principles of law are deducible:
(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.
(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.
(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence if the Court is of the view that the same is voluntary and true, but as a rule of prudence, it has been consistently held by the superior courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.
(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.
(v) That the confession of a co-accused is an evidence of a weak character.
(iv) That under Islamic Jurisprudence, in order to make a confession reliable it should be voluntarily made and not on account of any coercion, duress or violence.
(vii) That any delay in recording of a confession may, or may not, be fatal as to the evidentiary value of a retracted confession as in the case of Syed Sharifuddin Pirzada v. Sobbat Khan and 3 others PLD 1972 SC 363, this Court has held that the factum that the accused were in the police custody for 11 to 15 days, was not fatal as to the credibility of the retracted confessions for the reason that the Court was satisfied that the retracted confessions were not tutored and were, in fact, made voluntarily.
(viii) That any lapse on the administrative, side on the part of a Magistrate recording a confession, may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapses on his part have not, in any way, adversely affected the voluntariness or truthfulness of the confession.
(ix) That if an accomplice's evidence is not corroborated in material respects, it cannot be acted upon and that the evidence of an accomplice cannot be used to corroborate evidence of another accomplice.
(x) The legal position, which has emerged from the above reports, seems to be that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question, whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the subject to state the truth. If the Court is satisfied on the above aspect, the mere fact that there were some irregularities in recording of a confession, would not warrant disregarding of the same."
' Thereafter the High Court held that since confessional statement of the appellant had been corroborated in material particular by reliable evidence and since there was no reason to discard the same, as far as delay is concerned no irregularity had been pointed out. The High Court refused to discard the retracted confession.
19. Last case cited by the learned D.P.-G. Was Manjeet Singh's case (supra). A national of India was arrested by Mujahid Force near Kasur Border in the territory of Pakistan and was handed over to Intelligence Battalion, Lahore, for interrogation and during interrogation he disclosed his name and stated himself to be an agent or RAW and other Indian Intelligence Agencies. He was produced before Magistrate where his confessional statement under section 164, Cr.P.C. Was recorded. After trial he was awarded sentence of death. It was contended that the confessional statement suffered from serious illegalities as he was arrested on 30-8-1990 and he was produced before Magistrate on 8-9-1990 after keeping him in illegal custody for 8 days. The Supreme Court observed as under:-- "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.
(6) 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."
' Thereafter the Supreme Court observed that the petitioner was a national of India and was present illegally in Pakistan. The Supreme Court further noticed that he himself disclosed his mission and showed his willingness to make confessional statement and thereafter he was produced before the Magistrate. Thereafter the Supreme Court observed as under:--
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 voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be made basis of conviction without 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."
' Supreme Court also reproduced from State v. Minhum (PLD 1964 SC 813):-- "Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law.
' Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
' Thereafter since the Supreme Court came to the conclusion that since there was testimony of the Magistrate it was proved that the confession was voluntary:- "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. In the present case, confession of appellant Imran in material part reads as under:-- "I am residing in House No, 3H, 11/5 Nazimabad No, 3 Karachi. Since my birth. I am Amir of Harkatul Mujahideen Al-Almi. I along with Muhammad Hanif and Sharib arranged program for the murder of President Pervaiz Musharaf due to three following reasons that he is murderer of Muslim Nation, Secondly he has sold out whole Pakistan, to America, thirdly he made bargaining against the issue of Kashmir with America and India. Sharib asked me there is need of vehicle for this purpose so I provided him one Lac Rupees to arrange/provide vehicle thereafter Sharib told me in presence of Hanif that he has asked to Jamil and Naveed for purchasing the vehicle i.e, Suzuki Loading then they both purchased a Suzuki Loading and Sharib told us that he loaded the explosive substance, weighing about 400/500 Kg in the vehicle then Muhammad Kamran alias Atif came to me at my house and informed me that an Inspector of Rangers namely Waseem is voluntarily ready to provide assistance regarding the movement of the President. Then Kamran alias Atif voluntarily offered me that he is ready for suicide attack on the President Pervaiz Musharaf, but I forbidden him to do so. Then on that refusal Jamil brought remote control for explosion. The remote control was handed over to Kamran alias Atif. The same vehicle was parked on the Shahrah-e-Faisal near the Airport, thereafter Kamran alias Atif informed me that he switched on the remote control but it could not be functioned. Kamran alias Atif further informed that the vehicle is remained parked there whole night and on next day morning he shifts the vehicle in the unknown place." .21. Confession of appellant Hata reads as under:-- "I am residing in House No, 3A, 4/5 Nazimabad No,3 Karachi. I am Niab Ameer of Harkatul Mujahideen Al-Almi. I and Muhammad Imran and Sharib decided to kill the President Pervaiz Musharaf for the following reasons firstly he is. Murderer of Muslim Nation particularly in Afghanistan, secondly lie has sold out whole Pakistan to- America, thirdly he made bargaining with the India and America on the use of Kashmir. We decided to purchase a Suzuki loading and remote control for explosion and given one lac Rupees to Jamil and Naveed in this respect for the purchase of the vehicle and they purchased the same and fixed the wiring for explosion then Sharib loaded the explosive substance weighing about 400/500 Kg and handed over the loaded Suzuki to the Naveed for parking at Shahra-e-Faisal near the Falak Naz Arcade. Kamran was already there with remote control, I and Jamil were waiting at the mosque near. -Awami Markaz.
When the Motorcade of President Pervaiz Musharaf went away from in front of Falak Naz Arcade and Kamran alias Atif operated the remote control but it could not work at that time. Thereafter,- Kamran alias Atif met us in Gulshan-e-Iqbal and told the above said facts. On the next day, Kaniran alias Atif and Naveed brought the Suzuki from said place and parked the same in his brother's work shop."
22. Confession of appellant Muhammad Ashraf Khan reads as under:-- "I am residing in the House No, 3/D-23/16 Nazimabad since last four years. I joined Harkatul Mujahideen Jamat in the year of 1995 and after some period Ameer of Jamat had given me the responsibilities of treasurer of Unit Gole Market Nazimabad. We used to collect chanda from different mosque in the period of Ramzan and Eid, and the same was transmitted in the account of head of Mustafa Masjid Haroon Abad. In the year of 2000, the differences were arisen between Imran Bhai and Markazi Ameer Moulana Fazale Rehman Khalil of Harkatul Mujahadeen and due to that Imran Bhai had established new Tanzeem and give the name to it as Harkatul Mujahideen Al- Almi. I also joined the new Tanzeem on the post of treasurer. We again started to collect the chanda for new tanzeem and utilized all the funds in the assistance of Taliban in Afghanistan. We also sent twenty five (25) Mujaids to Afghanistan for Jehad. We also provided vehicle Toyota Corolla double cabin, which was purchased in the amount of Rs,3,30,000 and gave the cash amount Rs,30,000 for other expenses. We used to give them T.A/D.A. To the Mujahideen from said funds. Moreover last year in between June/July there were rumor that America is trying to conquer the Pakistan and attack on the Afghanistan so we namely Sharib, Imran, Muhammad Hanif and I myself decided to collect the weapons for the defence of Pakistan and Islam as we were aware that America is landed in Saudi Arabia but due to non availability of Arms and ammunition, they are helpless like Philistine. The amount of four lacs was granted to purchase the arms ammunition, the responsibilities to purchase the weapons was taken by Muhammad Hanif and the same weapons were brought through Habibullah Khatak from Meeran Shah but the amount of Rs, 4,00,000 was not taken from me on the same time, they collected the same from different sources and me on different time but I was not aware which weapons were purchased and where were stored. After the attack of America on Afghanistan, A Fatawa of Jehad against America and his supporters was delivered by Moulana Mufti Nizamuddin Sliamzi that if any body supports the America, who will be liable to be murdered. I also provided about one lac to Kamran and Jamil for Mujahideen in Afghanistan, during October and December for the weapons and goods. In the month of April, 2002 in first week, a meeting was called by Imran Bhai in his house which was attended by Imran, Hanif, Sharib and I myself. We discussed in the light of Fatawa that General Pervaiz Musharaf is liable to be murdered as he has supported to America. For this purpose, we decided to hire a shop at Shahrah-e-Faisal for racky. It was also decided to purchase a Suzuki loading Pick-up for explosive attack on General Musharaf. I provided Rs,35,000 to Hanif to hire the shop and the same amount was given to Aamir by the Hanif. Hanif also told us that inspector of Rangers namely Waseem Akhtar will assist and informed the where about of the President Pervaiz Musharaf. After 2/3 days Imran talked with me on telephone to give one lac rupees to Jamil for purchasing the Suzuki but I informed him that one lac rupees are not with me but I can provide 85,000/- on that Imran said to handover the same to Jamil. I did not see the vehicle or shop.
Thereafter General Pervaiz Musharaf came at Karachi and after stay of two days at Karachi/ he went away then I met with Imran and asked him that why Pervaiz Musharaf has gone alive on that he said me that remote control did not work and I asked to him about the vehicle and Imran said that it was kept safely at the garage of Kamran."
23. We will first of all take up the point made by the learned D.P.-G. That corroboration of confessional statements is available in the evidence of P.W.2, Muhammad Yahya. In his examination-in-chief he stated that he owned Shop No,S/1 Falak Naz Arcade and in the month of March, 2002 an Estate Agent Badar Munir of Kashif Estate Agency contacted him through his son- in-law to let out the shop. He stated that shop was rented out to one Ashfaq Butt who paid cash amount of Rs,35,000. He produced a copy of tenancy agreement stated to have been executed between P.W.2 and Muhammad Ashfaq Butt on 31-3-2002. He stated that atter one month no rent was paid to him and when he contacted the estate agent, he advised him to wait for some time.
During cross-examination he admitted that he received tenancy agreement from the Estate Agent and had not gone personally to the Notary Public. This summation of evidence of P.W.2 clearly indicates that it does not corroborate the confessional statement. Even otherwise in the confessional statement it instated by appellant Muhammad Ashraf Khan that it was in the first week of April, 2002 when discussion regarding Fatawa took place and when it was decided to hatch the plot etc. Muhammad Ashfaq Butt has not been produced as witness. Why could shop be hired even before conspiracy to commit murder of President was hatched. Therefore, we are unable to see as to how the statement of P.W.2 provides corroboration to confessional statements of the appellants. Learned D.P.-G. Frankly conceded that besides statement of P.W.2 there is no other corroboration.
24. However, he vehemently argued that even there is no corroboration, conviction can be based on confessional statement. We have referred above to the case-law on this point. Imran Bashir Farooqui's case (supra) laid down that too much reliance cannot be placed on an uncorroborated, retracted confession. In Naqibullah's case (supra) the Supreme Court noted that it was remarkable that it was a very rare occurrence for evidence of a confession to be given when proof of accused person guilt is otherwise clear and satisfactory and when it is not clear and satisfactory, it is many a times claimed that out of penitence and remorse the accused admitted his guilt. It was further held by the Supreme Court that prosecution must adduce some direct or circumstantial evidence to connect the accused persons with the crime. In Abdul Razzak's case (supra). It was held that if the accused was already in police custody for a number of days, veracity of confession itself would become doubtful and it would not be prudent to base a conviction on such confession alone. In Daulat Ali's case (supra) corroboration was available in the form of medical evidence, recovery of crime weapon and last seen evidence. In Ashfaq Khalid's case (supra), though it was observed that the confession cannot be sole basis for conviction but it was held "sufficient" other evidence was available on record. In Shaikh Muhammad Amjad's case (supra), it was held that whether a confession was voluntary and true is a question of fact and is to be determined keeping in view the "attending circumstances". In Muhammad Azam's case (supra) corroboration was available by reliable evidence. Manjeet Singh's case (supra) got its corroboration from the fact that he was national of India and was found inside sensitive part of Pakistani Border with no plausible explanation of his such presence. It has been succinctly laid down by the Hon'ble Supreme Court in Choudhry Muhammad Yagoob's case (supra) that in order to judge the evidentiary value of retracted confession, the Court is to advert to the question whether the same appears to have been made voluntarily, without any inducement, duress or coercion with the subject to state the truth. The Supreme Court has also held that if there are some minor irregularities in recording the confession it would not warrant discarding the same. It is with these tests that the confessions made by the three appellants have to be tested.
25. Learned counsel for the appellant submitted that the confession was typed by a typist and were merely signed by Magistrate. He further submitted that on the record it is not stated that any warning was given to the appellants that whether they admit or not they would not be remanded to police custody. As far as, typing of confession is concerned, a reading of the confession clearly indicates that though the questions and answers were typed and also though the confession was typed, thereafter certificate was recorded by the Magistrate in his own handwriting. Therefore, we do not think any irregularity has been committed in typing the confession rather than writing it in longhand.
26. However, the confession in this case was recorded in English language and one of the grounds which prevailed with the Supreme Court in Criminal Petition No,88-K of 2006 (in which two of the appellants were respondents) that judicial confessions were recorded in English language and there was no certificate from the Magistrate that the persons making alleged confessions had knowledge of English language and were able to understand the questions put to them in English for giving a proper reply or that the questions were translated and explained to respondents in the language which they understood. Some what similar position has prevailed in this case also. There are many other aspects which render the confessions doubtful and in our opinion involuntary.
These aspects are as follows:--
(1) The appellants have been in custody for more than a month in connection with another case.
That case was in connection with allegations that the appellants were involved in a bomb blast at American Consulate. They have been later on acquitted in the later case. The fact is that the might of State had involved them in one case involving attack on Consulate of a foreign power. Their being in custody for such a sensitive case is certainly an "attending circumstances" throwing a big mud pack of doubt on story of prosecution.
(2) Appellants were arrested in this case and then after almost 10 days thereafter their confession was recorded. However, this delay of 10 days has not been explained by the prosecution at all. In terms of Abdul Razzak's case, it would not be prudent to base conviction on such a confession.
(3) It is alleged that a Suzuki was purchased. Even if discordance in the three confessions regarding the amount paid for the Suzuki is discarded, the question is what happened to that Suzuki did they borrowed it, bought it or stole it. And where did it vanish after the batched up attempt. There is no evidence whatsoever in this regard. If Sharib Arsalan is not guilty does that mean that explosives were never loaded.
(4) Then it is alleged that 400/500 Kg explosives were purchased and Sharib Arsalan loaded the explosive substance in the vehicle and handed over the loaded vehicle to one Naveed for parking at Shahrah-e-Faisal near Falak Naz Arcade. Sharib Arsalan has been acquitted. From where were the explosive purchased? There is no investigation and no evidence whatsoever in this regard.
(5) Then it is stated that accused Jamil brought remote control for explosion. From where did he buy the remote control? There is no investigation and no evidence in this regard. Moreover accused Jamil has been acquitted on an application under section 265-K, Cr.P.C. So was there any remote control device?
(6) It is claimed that vehicle was parked on a footpath by which the motorcade of the President was to pass. It defies reason and logic that hundreds of Police Constables are put on road side duty at the time of such VVIP movement. Even petrol pumps, at least since 2003 are barricaded and when dozens of police cars and motorcycles, patrol and check the road, how can a Suzuki High Roof remain blatantly parked on a footpath. No evidence has been produced that any of the police officers on duty on that day noticed such a parked Suzuki, reported to a higher officials and they stated, "Let it remain. It is not a security threat".
(7) P.W.5, Dawood Akbar in his cross-examination stated that pointation of the places by accused was carried out under supervision of Inspector Khaskhely and such memo was prepared on 8-7- 2002 between 2000 hours to 2010 hours. It is further stated that F.I.R. Was recorded on 8-7-2002 at 2230 hours.
27. All the above create doubt on both, the correctness of the statements made in the confessional statements as well as on the voluntary nature of such confessions. Therefore in our opinion no conviction could have been based on such kind of confessions recorded under such kind of circumstances coupled with such kind of evidence and in presence of such kind of serious questions relating to the story setup by the prosecution.
28. While concluding Mr. Abdul Waheed Katpar, learned counsel for the appellants stated that appellants have been kept behind the bars for almost 8 years for no fault of their. He therefore stated that compensation of Rs,100,000 should be paid to each one of them. Though contention of the learned counsel seems to be interesting, if not startling in its sweep, learned counsel chose not to press it.
28A.This court has noticed that investigation leaves so much to be desired that many a times, may almost always, one is left wondering whether there was any attempt at investigation or not. More often than not the investigator seems to leave so many loose ends hanging out, that even a good case is destroyed. It not also infrequent that evidence is "created" rather than "unearthed". It is high time that the authorities pay more attention to firstly bringing persons with necessary intelligence, Quotient score and instituting training of the investigating officer.. It may be considered to incorporate in such training curricula dissection exercise of actual cases where failure of investigation took place.
29. Consequently, we accept these appeals and set aside the judgment dated 15-1-2008. The appellants are ordered to be released forthwith if not required in any other case.