TAUQIR ALAM and 9 others vs THE STATE

1. ' SAJJAD ALI SHAH, J.--From these three appeals, two are Criminal Appeal No,37/84 filed by appellant Ayoob son of Saeedullah and Criminal Appeal No,38/84 filed by appellant Tauqir Alam son of Mohammad Ismail. Third is Criminal Jail Appeal No,45/84 filed from Jail by appellant Ayoob, which was registered in the High Court and got consolidated with Criminal Appeal No,37/84 filed by the counsel on behalf of appellant Ayoob. Along with these appeals there is before us reference for confirmation of death sentence awarded to appellants named above (Confirmation Case No,16/84) and we propose to dispose of these appeals and reference by single judgment. Both appellants have been convicted for offence under section 302/34, P.P.C. And sentenced to death.

2. Appellant Ayoob is further convicted under section 376, P.P.C. And sentenced to R.I. For five years and fine of Rs,2,000 or in default R.I. For two years, Appellant Tauqir Alam is further convicted for offence under section 376, P.P.C. And sentenced to R.I. For five years and fine of Rs,2,000 or in default R.I. For two years, In fact present two appellants and other three co-accused were tried together in the trial Court for offences under sections 302, 376, 377 and 364-A read with section 34, P.P.C. And ultimately learned Sessions Judge, Karachi, convicted and sentenced present two appellants as stated above and acquitted other three co-accused namely Nayar Mirza son of Muhammad Mirza, Zafar son of Mashkoor and Ishtiaq All son of Sadiq Ali. Impugned judgment is, dated 5th April, 1984.

3. ' Against the acquittal State has filed Criminal acquittal appeal No,125/84, which was to be heard along with present appeals but subsequently vide order, dated 16-2-1985 of learned Chief Justice, acquittal appeal was separated for the reason that the same was not ripe as respondents therein could not be served and non-boilable warrants issued against them could not be executed despite several attempts. There was also persistent request from the counsel of appellants for early hearing of appeals and confirmation reference of condemned prisoners and the additional ground urged was that the counsel had to go abroad for medical check-up. In such circumstances the learned Chief Justice was pleased to grant the request and in consequence acquittal appeal was separated. Before us Mr. Abdul Wahab Advocate appeared as Special Public Prosecutor appointed by Government of Sind for this particular case and appeals arising therefrom and filed an application on 25-3-1985 with request for time to enable him to move the Supreme Court of Pakistan against the order of learned Chief Justice separating acquittal appeal from confirmation case and connected appeals. Another application was filed with a request for adjournment for two weeks to enable the Special Public Prosecutor to get respondents arrested in acquittal appeal.

4. Time was allowed as requested but neither the respondents in acquittal appeal could be arrested nor order of the learned Chief Justice was challenged in the Supreme Court and consequently the Special Public Prosecutor agreed to proceed with confirmation case and connected appeals.

5. ' Briefly stated the prosecution case is that Taranum Aziz aged 7i years daughter of Aziz Ahmad used to study in K.M.C. School in Block No,10 in Federal 'B' Area and on 5-2-1978, she went to the school as usual but did not return. Her parents made a frantic search for her and on the same day at about 11-15 p.m. Her disappearance was reported at Police Station Gulberg by Jameel Ahmad uncle of the girl Report was noted in Entry No, 55 of Roznamcha (Exh. 6 at page No,102 of Paper book). On the following day i.e, 6-2-1978 Aziz Ahmad fatner of the girl having failed in attempts to trace her suspected kidnapping by unknown person and filed such complaint which was recorded as statement under section 154, Cr.P.C. At Police Station Gulberg at 5-30 p.m. (Exh. 11 at page No, 118 of Paper book). Both these reports of Jameel Ahmad and Aziz Ahmad, who are brother inter se, were incorporated in F.I.R. Formally drawn up at the same Police Station. (Exh. 16 at page No,123 of Paper book). Next day on 7-2-1978 at 8-30 a.m. Aziz Ahmad received a letter purporting to have been written by "July Khan" demanding ransom of Rupees one lac for safe return of his daughter.

6. Further threat was extended that if money was not paid or any wrong step was taken then the girl would be killed. Aziz Ahmad was advised in that letter to wait for telephone call. (Letter is Exh. 13 at p. 120 of Paper book). On the same day at about 9-15 a.m. a telephone call was received by complainant Aziz Ahmad at his residence and he was asked to come to Kala Board with ransom money at 3-00 p.m. If he wanted back his daughter. Accordingly complainant Aziz Ahmad went to Kala Board near Railway line and waited there for about one hour but nobody came there to collect ransom. It would be pertinent to point out here that it is part of the prosecution case that on 7-2- 1978 at about 12-30 noon complainant Aziz Ahmad handed over ransom letter to Abdullah Khan D.S.P. Liaquatabad. Muhammad Mahboob Khan, S.I. Under the order of D.S.P. Received letter under seizure memo. Duly signed by the witnesses. (Seizure memo. Is on the record as Exh. 28 at page 164 of the Paper book). On 10-2-1978 one Badar Aftab telephoned Miss Safia Begum, Inspector of Police, at reporting center, Police Head Office, Karachi and informed about his discovery of gunny bag with suspected dead body in it lying in Federal 'B' Area. Such entry was made in Station Diary at about 10-30 a.m. (Exh. 9 at page 109 of Paper book). A.S.I. Muhammad Yousuf found gunny bag near Shia orphanage in Block No,6, Federal 'B' Area and on opening the same found dead body in it of a small girl with legs tied with belly and hands tied with feet.There was rope tied with neck and there was school bag containing books, copies, sweater and a pair of P.T.Shoes. The dead body was identified to be of missing girl Taranum Aziz by her Uncle Jameel Ahmad. Post-mortem was performed on the same day and according to the report (Exh. 18 at page 134 of Paper book). Victim girl had died of Asphyxia due to strangulation with fine rope and was subjected to rape and sodomy before death. Mohammad Khan Inspector, who was then In charge of investigation called Ayoob on 22-2-1978 and made him write in English as well as Urdu. He compared the writings with photo copy of ransom letter, which was received at Police Station Joharabad, and found some similarities. He took 23 specimen of handwriting of Ayoob and sent them to handwriting expert, who already had the original. On being informed on telephone by the expert that his finding was positive, Inspector Mohammad Khan took Ayoob in custody. Subsequently on the pointing out of Ayoob, Inspector took in custody Nayar Mirza,Zafar Mashkoor and Tauqir Alam. Afterwards Ishtiaq All was arrested on the pointing out of Nayar Mirza. All the accused persons in the case was arrested on 23-2-1978 and 27-2-1978 all the accused persons in the case, who were in custody of Police, made judicial confessions before Mr. Bashir Ahmad Chishti, Magistrate Police Station Gulbahar, Karachi (Exh. 58 to 62 at pages 233 to 254 of Paper book). It is further the case of prosecution that during investigation Tauqir Alam while in custody on 25-2-1978 led Police Party to a shop known as "Delux Paint Place" from where he had purchased gunny bag and rope. Shop keeper Rizwan Ahmad produced similar bunch of rope, which was seized. Tauqir Alam then led to House No,564 in Federal 'B' Area, which was unflustered and under construction and inside from an almirah from a room produced one note-book in which on one page was written draft of letter of July Khan. Note book was seized while searching the home Police also recovered 13 sanitary pads blood-stained from the garbage under mango tree in the courtyard of the house. Police also secured from the house blood-stained handkerchief, mattress and Chadar.

7. ' Before the trial Court, prosecution examined in all 45 witnesses in support of its case. P.W.1 is Mohammad Lateef, A.S.I. (Exh.5, page 101) who made entry in Station Diary at Police Station Gulberg on 5-2-1978 of report of missing made by Jameel Ahmad and produced copy thereof as Exh.6.

8. P.W.2 is Jameel Ahmad, who is uncle of deceased Taranum Aziz (Exh.7 at page 103). P.W.3 is Miss Safia Begum, Inspector of Police, who was informed on 10-2-1978 about discovery of dead body in gunny bag (Exh. 8 at page 108). She made such entry in the Station diary and produced copy as Exh.9. P.W.4 is complainant Aziz Ahmad, who is father of deceased girl. (Exh. 10 at page 110). He filed report about suspected kidnapping of his daughter at Police Station Gulberg on 6-2-1978 Exh.

11. He deposed in details about how he received ransom letter and subsequent telephone call for payment of Rs,1,00,000 as ransom money, which nobody came to collect and later on the dead body was discovered. When complainant was shown ransom letter Exh.13 he denied it to be the same which he gave to D.S.P. Abdullah Khan and at the request of prosecution he was declared hostile and cross-examined. P.W.5 is Roh Khan, Constable corpse-bearer (Exh. 14 at page 121). P.W.6 is Mohammad Sadiq, Sub-Inspector, who deposed that on 6-2-1978 A.S.I. Rehmatullah came to Police Station with statement under section 154, Cr.P.C. Which he entered in the book and produced copy as Exh. 16 (Deposition is Exh. 15 at pase 122). P.W.7 is Dr.Abdul Majeed Khan (Exh. 17 at p. 125). He conducted post-mortem examination of deceased Taranum on 10-2-1978 and produced post- mortem report as Exh.18. He also examined all accused persons in this case and produced their potency medical reports Exhs. 19 to 22. P.W.8 is Mohammad Yousif, A.S.I. Of Police Station Jacobabad, who on 10-2-1978 received message from Inspector Safia Begum about discovery of dead body and made such entry in Roznamcha and then went to Block No,6 near Shia orphanage, Federal 'B' Area, where gunny-bag was opened up in presence of mashirs and dead body was recovered vide Mashirnama Exh.25. P.W.9 is Mukhtar Ahmad son of Mushtaq (Exh. 27 at p. 157). He and complainant Aziz Ahmad are friends and are in the same cigarette business. Acquitted accused Ishtiaq All was driver of his father Mushtaq Ahmed at the relevant time. On 7-2-1978 he went to the house of complainant Aziz Ahmed and saw the ransom letter and also accompanied complainant in the car to the telephone office where enquiry was made about the tapping of the telephone call. He also accompanied complainant Aziz Ahmad to D.S.P. Abdullah Khan to whom ransom letter was delivered. At the request of prosecution this witness was also declared hostile.

9. He denied that ransom letter was received by police under a Mashirnama. He was doubtful whether Exh.13 was the same ransom letter which complainant Aziz Ahmad gave to D.S.P. Abdullah Khan and after great hesitation admitted it to be same.

10. ' P.W.10 is Aurangzeb about 9 years old at the time of deposition and class-mate of deceased Taranum. He saw Traranum for the last time alive when outside the school, she went in a white car with black roof with two Pathan like persons who were not known to him before (Deposition Exh. 32 p. 167). P.W.11 is Allah Ditta Mashir, who has attested and produced Mashirnama of recovery of dead body in gunny bag. (Exh. 33 at page 169 of Paper book). P.W.12 is Syed Yadgar Hussain, S.I. Who took action against Zafar and Ayoob under sections 107 and 117, Cr.P.C. On the complaint filed by one Laiq All on 26-10-1977. (Objection was raised by defence counsel that this evidence was hit by section 54 of the Evidence Act and further that this witness admitted in cross that the case filed was still pending when his evidence was being recorded. (Deposition is Exh. 34 at page 170). P.W. 13 is Azizuddin Khan, who claimed to have seen ransom letter with complainant Aziz Ahmad at his residence and then at the time when it was delivered to D.S.P. Abdullah Khan. He denied preparation of Mashirnama about the recovery of that letter. He also denied that Exh. 13 was the same letter. He was declared hostile and cross-examined by the prosecution. (Deposition is Exh., 37 at page 174). P.W. 14 is Mohammad Mahboob, S.I. Who partly investigated the case in the beginning and on 7-2-1978 received ransom letter from D.S.P. Abdullah Khan and prepared Mashirnama Exh.28. He prepared photo copies of ransom letter Exh.13 and sent them to all Police Stations and original to handwriting expert. On 10-2-1978 investigation was taken over from him by Inspector Mohammad Khan of C.I.A. (Deposition is Exh. 39 at page 180). P.W.

11. 15 Choudhry Mohammad Arif claimed to have known Zafar and Ayoob before the incident as they used to visit house of a woman Shahla in front of his house and further saw them alongwith one other person talking while two other persons, were sitting in the car on the front seat. He also saw head of a child on the back seat. Then Zafar, Ayoob and third person sat in the car which sped away. This witness went away to Pindi and when he came back, he read about this case in the papers, saw photographs and identified Tauqir as third person talking with Zafar and Ayoob. This witness wrote to the Deputy Commissioner that he wanted to give information about the case and was then called by Inspector Mohammad Khan who recorded his statement. (Deposition of this witness is Exh. 44 at page 188). It may be mentioned here that specimen handwriting of this witness was taken in the trial Court at the instance of defence counsel and with consent of Special Prosecutor for comparison with Exh.13 but no further action was taken.

12. ' P.W. 16 is Abdullah Khan D.S.P. Who has deposed that on 7-2-1978 he was informed that complainant Aziz Ahmad had received ransom letter so he called S.I. Mahboob. Complainant came and delivered letter to him, which he handed over to S.I. Mahboob who prepared Mashirnama of recovery. He identified Exh.13 to be that letter of ransom and Exh.45 (letter of P.W.15 Choudhry Mohammad Arif) and Exh.45-1 (received from office of S.P.) He marked that letter Exh.45 of P.I.

13. Muhammad Khan (Deposition of this witness is Exh. 50 at p. 206).

14. ' P.W.17 is Mohammad Ali; cycle repairer, who has supported story of P.W.15 Choudhry Mohammad Arif about the car with two persons already sitting in it and three persons going in it but stated that he could not identify those five persons. (Deposition of this witness is Exh.51 at p. 210). P.W. 18 is Anisul Wara Faish, teacher in Saifee Coaching Centre, Azizabad. Tauqir, Nayer Mirza and Zafar Mashkoor studied in his school. During investigation register containing their names was seized. He identified in the Court only two namely Nayar Mirza and Zafar Mashkoor. (Deposition of this witness is Exh.52 at page 213).

15. ' P.W.19 is Mr. Bashir Ahmad Chisti, Magistrate P.S. Gulbahar, Karachi. On 27-2-1978 he recorded judicial confessions of Tauqir Exh.58, Nayer Exh.59, Ishtiaq Exh.60, Ayoob Exh.61 and Zafar Exh.62.

16. (Deposition of this witness is Exh.56 at p.217). P.W.20 is Mohammad Amin Qureshi, who attested as Mashir inquest report Exh.66. (His deposition is Exh.65 at p.267). P.W.21 is Mohammad Aslam Mashir, in whose presence 23 specimen handwritings of Ayoob were taken at P.S. Vide recovery memo. Exh.

68. (Deposition of this witness is Exh.67 it p.272). P.W.22 is Raja Rahmat Mashir, in whose presence, Tauqir while in custody pointed out shop "Delux Paint Place" from where gunny bag and rope were purchased. Mashirnama prepared in this context is Exh.71, which is attested by this witness. Tauqir then pointed out a .House, which was unflustered and locked from outside. Hawaldar brought key with which lock was opened. From inside almirah, Tauqir produced a note book containing rough draft of letter purported to have been written by "July Khan". This notebook was seized by memo.

17. Exh.

72. Tauqir also produced handkerchief and pencil. At his potation mattress, blanket and pillow- cover were also seized. In the courtyard of the house under a mango tree from the dump a brown paper-bag was taken from which 13 sanitary cotton-pads were recovered which were found to be blood-stained. These recoveries were made vide Mashirnama Exh.74.

18. (Deposition of this witness is Exh.70, at p.288). P.W.24 is Masroor Ahmad, owner of Pathological laboratory, where Nayar Mirza worked as employee. He deposed that on 5-2-1978 Nayer Mirza took leave at 12-30 noon and left the laboratory. Again on 11th Nayar Mirza came back to the laboratory.

19. (Deposition of this witness is Exh.76 at p.298).

20. ' P.W.25 is Khalid Ahmad Mashir,in whose presence car which was already parked in the premises of P.S. Joharabad was seized by police vide Mashirnama Exh.

89. On the back seat of the car there were small blood stains and a small pencil and Toffee wrappers were also recovered from the car. It was a Fiat car white in color with black roof bearing registration No, KAF-4093. (Deposition of this witness is Exh.88 at p.308). P.W.26 is Mashir Muhammad Younis (Exh. 90 at p. 311). In his presence S.I. Moinul Islam secured note-book containing handwriting of Zafar from his father Mashkoor Ahmad vide Mashirnama Exh.91. Secondly in presence of this Mashir same S.I. Secured six papers containing handwriting of Tauqir from his father Muhammad Ismail vide recovery memo.Exh.94. P.W.27 is Mashir Aqeel Ahmad (Exh. 95 at p.

21. 319). In his presence Ishtiaq while in custody on 27-2-1978 pointed out place of kidnapping vide memo. Exh. 96, place where dead body was left vide memo. Exh. 97, place where offence was committed vide memo. Exh.

22. 98.

23. ' P.W. 28 is Muhammad Aslam A.S.I. (Exh.99 at p.325). On 5-2-1978 he was A.S.I. At P.S. Joharabad and investigated F.I.R. Of a theft case of a car. On 7-2-1978 he found the car abandoned in New Karachi Jungle near cinema house, there was no tape-recorder in it. He prepared recovery memo.

24. Exh.

101. At the instance of Inspector Mohammad Khan, this witness reached Banney Khan, who produced tape-recorder. Theft case was challenged against Ishtiaq and Zafar Mashkoor, who were already in custody. P.W.29 is Sikandar who is owner of Fiat Car No,KAF-4072 (Exh.103 at p.332). He reported theft of his car on 4-2-1978. His Car was recovered on 7-2-1978 which he saw at P.S. But there was no tape-recorder in it. On 9-2-1978 he received his car under the orders of Additional City Magistrate. On 20-3-1978, he learnt that tape-recorder had been recovered. P.W.30 is Mashir Mohammad Farooq (Exh. 104 at p. 335). His evidence is same as that of P.W.26 Mashir Muhammad Younis with the exception that Mohammad Farooq has spoken about recovery of cycle from father of Zafar while Mohammad Younis has not said anything about cycle. P.W.31 is Banney Khan (Exh.105 at p.338). He deposed that Zafar sold him tape-recorder at Rs,250, and subsequently he handed over that tape-recorder to the Police. P.W. 32 is Mohammad Abbas owner of a hotel in Dastgir colony (Exh. 106 'at p. 341). He stated that Zafar and Tauqir used to come together to his hotel.

25. P.W.33 is Ashfaq Hussain (Exh. 107 at p. 343) who is employee is Saifee Coaching center. Register was seized by police showing Zafar, Tauqir and Nayer studying there. He identified only two namely Zafar and Nayar. P.W.34 is Mashir Haji Rehmatullah (Exh. 109 at p.347). His evidence is same as that of P.W.27 Mashir Aqeel Ahmad. P.W. 35 is Mashir Javedul Hassan (Exh.110 at p.349) in whose presence Ishtiaq pointed out Suzuki van and Ford car in the house of Mukhtiar Ahmad, which were seized by police. P.W.36 is Abdul Hafeez, mechanic owner of motor Barrage, who knew Ishtiaq (Exh.

26. 113 at p. 353). He was given up for the reason that his name did not appear in challan and his statement under section 161, Cr.P.C. Was not supplied to the defense. P.W.37 is Muhammad Mahboob S.I. (Exh. 114 at p. 354). ' He deposed about checking record of Government Degree College in respect of admission of Tauqir Alam. He checked record of Saifee Coaching Centre in respect of admission of Zafar, Nayar Mirza and Tauqir. He also checked record of Royal Pathological laboratory, where Nayar was an employee. It would be pertinent to mention here that this witness Mohammad Mahboob was examined in the trial Court twice. Once before he was examined as P.W.

27. 14 (Exh. 39 at p. 180). It appears that certain things were left out in his first deposition, so he was examined for the second time but no such clarification is recorded by learned trial Judge.

28. ' P.W. 38 is MRs, Shela Rahman (Exh. 115 at p.358). She stated that she knew accused Ayoob, who used to come to her house to work as Plumber. To that extent she supported P.W.15 Choudhry Mohammad Arif (Exh.44 at p.188). P.W.39 is Zaheer Ahmad, Principal Degree College, Nazimabad.

29. (Exh. 116 at p. 359). He brought record and stated that Tauqir Alam after his admission on 2-2-1979 did not attend the college. P.W. 40 is Zahir son of Mushtaq (Exh. 119 at p.363). He is owner of Cafe Dilshad. In Dastgir Colony and deposed that Zafar, Tauqir and Nayar used to come together to his restaurant for tea. P.W.41 is Jaffer Khan Chowkidar (Exh. 121 at p.366). He stated that his brother Sikandar used to stay in Juggi No,564/2 and opposite that was a house, which remained vacant and Tauqir used to visit it. P.W.42 (wrongly typed in Paper book as P.W.40) is Moinul Islam S.I, who partly investigated the case (Exh.124 at p.370). He was A.S.I. At P.S. Joharabad. F.I.R. Of this case was registered at P.S. Gulberg. Dead body was discovered in the jurisdiction of his P.S. On the direction of Mohammad Khan Inspector he brought Ayoob at P.S. Specimen handwriting of Ayoob were taken by Inspector. Ransom letter Exh.13 and specimen handwritings of Ayoob were given to this witness by Inspector, which he took to handwriting expert, who gave his finding after about one hour. This witness came back to the P.S. And Ayoob led police party to the house of Mirza Aziz Ahmad Baig from where Nayar Mirza was arrested. Ayoob led to the house of Zafar, from where Zafar was arrested. Ayoob, led to the house of Tauqir, from where Tauqir was arrested. Lastly at the pointing out of Ayoob Police arrested Ishtiaq All from Gharibabad. This witness Moinul Islam S.I. On 27-2-1978 on the pointing out by Ishtiaq An prepared Mashirnamas Exh.96 (place of recovery of dead body), Exh. 98 (place of offence). On 27-2-1978 this witness took all accused in the case and had their judicial confessions recorded before Magistrate first class. On 5-3-1978 under the direction of S.H.O. This witness took specimen handwritings of Tauqir and Zafar and cycle from the house of Zafar.

30. ' P.W. 43 (wrongly typed in Paper book as P.W.41) is Ghulam Abbas D.S.P. Forensic Branch, Karachi (Exh.127 at p.381). He deposed that on 6-2-1978 he received questioned document Exh. 13 from C.I.A.For examination of handwriting without specimen handwriting. On 23-2-1978 he received specimen writings of a suspected person and after examination gave finding in his report Exh. 126, which is positive.P.W. 44 (wrongly typed in Paper book as P.W. 42) is Ghulam Mustafa Tapedar (Exh.

31. 139 at p. 404) who prepared sketch of the scene of offence on 6-3-1978. Lastly prosecution examined P.W.45, (wrongly typed in paper book as P.W. 43) Mohammad Khan Inspector who has investigated this case (His deposition is Exh. 143 at p. 410).

32. ' Prosecution produced report of Chemical Examiner Exh. 146 (p. 425) which shows that semen was detected on Article No,12 only (printed Chadar). Prosecution had sent in all 13 article contained in 10 sealed parcels but no semen was detected in other articles. Another report of Chemical Examiner Exh. 147 shows that Articles 1 to 6 were found to be stained with human blood. Further, article 1 (blue shirt uniform), 2(white Shalwar) and 13 sanitary pads were found to be stained with blood of group 'B'. On articles 4 to 6 grouping could not be determined as material was insufficient. This report of Chemical Examiner is Exh. 148 (at page 430) which shows articles 1 and 2 from Fiat Car No,KAF-4093 were found to be stained with human blood. Article No,1 was scraping of red spot from the front right door and Article No, 2 was scraping of human tissue from front right door of the car. Grouping could not be made because material was insufficient. Exh. 149 in the record (page 432 of Paper book) is application of Miss Anwar Fatima addressed to the S.H.O., P.S. Joharabad for return of key of her house No,564 Block No,2 Azizabad and allegation is made therein of Police harassment. Exh.

33. 151 at page 434 of Paper book shows that she attended at Police Station interrogated and received on 3-3-1978 by S.H.O. Prosecution closed its side.

34. ' Before the trial Court in their statements under section 342 Cr.P.C. Defence was taken of denial simplicitor of prosecution allegation and the confessions were also retracted from Nayar Mirza stated that he made judicial confession under duress and had filed complaint against Police Officers, which is pending in the Court of Vth Additional Sessions Judge, Karachi. He admitted studying in Saifee Coaching Centre at the relevant time but denied knowledge about other co- accused also were studying with him there. He admitted that he was employee of Royal Pathological Laboratory and on 5-2-1978 left at 12-30 p.m. And further he did not attend office on 10-2-1978. Likewise all accused in the trial Court denied prosecution allegations and stated that judicial confessions were made by them under duress and they have filed complaints against Police officers which are pending. Zafar Mashkoor admitted studying in Saify Coaching Centre but claimed he did not know that Anisul Wasa was a teacher there. He expressed ignorance about the fact that his father produced note book. Exh. 19 and further denied that it was his. He also denied that he sold tape-recorder to Banney Khan. Ayoob admitted his specimen handwriting Exhs. 69/1 to 69/21 but denied all other allegations.Tauqir Alam admitted studying in Saify Coaching Centre but denied knowledge about Zafar Mashkoor studying there or P.W. Anis-ul-Wasa teaching there. He denied his handwriting in Exh.93. Ishtiaq Ali stated that he was driver of Haji Mushtaq and drove him to the house of father of deceased girl. While he was waiting outside, he was given a letter which he gave to Haji Mushtaq. He denied knowledge of the contents of letter. No witness was examined in defence.

35. ' We have heard at length Mr. Mohammad Hayat Junejo counsel for appellants Ayoob and Tauqir on one hand and Mr. Abdul Wahab Khan, Special Public Prosecutor and Mr. Abdul Wall Makhoom for State on the other hand.

36. ' This case became very sensational particularly after the discovery of dead body and performance of post-mortem which indicated that Mat. Taranum Aziz little deceased girl of 7 or 8 years was subjected to rape and sodomy before being killed by strangulation. Ransom letter received by father of the deceased girl was published in newspaper. P.W.9 Mukhtar Ahmad (page 157) produced before the trial Court daily "Hurriat" of 13-2-1978, Exh.29, weekly "Nusrat" dated 15th February, 1978 Exh.30 and weekly "Chiragh" dated 16-2-1978 Exh.31 P.W.45, Inspector Mohammad Khan has deposed at page No,411 that ransom letter was with C.I.A. Police and its copies were sent to all Police Stations. At another place in his deposition at page 417 this witness stated that after arrest of Ayoob, the investigation of this case was handed over to him and the D.I-G. Had sent the accused to Manghopir Police Station without his knowledge as there was threat to the lives of accused from the mod of people. Accused were kept separately at different Police Stations. P.W.19 Bashir Ahmad Chisti, Magistrate, who recorded judicial confessions in his deposition at page 224 stated that he knew that incident of this case was given enough publicity in the papers and in that context press statement was attributed to him. He denied having made any such statement to the Press and wrote such letter to the Deputy Commissioner, Karachi West which is Exh.63/1 on the record in consequence of which Deputy Commissioner had to issue Press release which is Exh.63/3 on the record. P.W.16 Abdullah Khan, D.S.P. In his deposition at page 208 stated that when accused were arrested, on the next day there was a Press conference and he was present there. Further, another Press conference was called at P.S. New Town. In these circumstances it can be said that there were attempts to create sensationalism and excessive publicity was given to this case portraying it as cruel and revolting hence it becomes more necessary to examine the evidence with more than ordinary care, lest the shocking nature of the crime might induce an instinctive reaction against a dispassionate judicial scrutiny of the facts and law. Reliance is placed on the case of Kashmira Singh v. The State AIR 1952 SC 159.

37. There is no direct evidence in this case hence the mainstay of prosecution case is judicial confessions of accused persons which have been retracted. On this point the learned trial Judge while discussing together points of determination Nos. 4 to 8 at page No,486 (Paper book) in the impugned judgment has concluded that judicial confessions Exhs.58 to 62 were voluntary and true.

38. Since the judicial confessions were retracted, the learned trial Court looked for corroboration and found the same against Tauqir in the shape of recovery of 13 sanitary cotton pads, note book containing draft Exh.72 of ransom letter. These things were recovered according to the prosecution on the pointing out by Tauqir. Handwriting in draft Exh.72 was found by the expert to be that of Zafar and 13 sanitary cotton pads were found to be stained with human blood. Against Ayoob there was finding of the handwriting expert that his specimen writings from Exhs.69/1 to 69/21 tallied with writing of ransom letter Exh.13. No such corroborative evidence was found against the remaining three accused persons who were acquitted but Ayoob and Tauqir were convicted and sentenced to death as stated above.

39. ' Now we take up the judicial confessions as they are but it is necessary to point out that according to the prosecution kidnapping took place on 5-2-1978 at 5-00 or 5-30 p.m. When on the same day at 11-15 p.m. Entry was made at P.S. Gulberg about disappearance of Taranum Aziz and on the following day report was lodged at the same Police Station by father of the girl about suspected kidnapping. On 7-2-1978 complainant Aziz Ahmad received ransom letter followed by a phone call and on 10-2-1978 dead body of Taranum was found. On 22-2-1978 Ayoob was called at Police Station by Inspector Mohammad Khan when his specimen handwritings were taken and on 23-2- 1978 first Ayoob was arrested and then all the remaining accused persons. On 27-2-1978 judicial confessions were made. It is the case of the prosecution that all accused were known to each other and with the exception of Ishtiaq All all of them planned together kidnapping of a child in order to secure a ransom. Ishtiaq All who is a driver, was joined later to provide transport. Subsequently Taranum Aziz, who is related to Nayer Mirza as first cousin was kidnapped and kept at the house provided by Tauqir Alam. Ransom letter was sent and subsequently the little girl was subjected to rape and then murdered and then dead body was thrown at the place where it was recovered.

40. Now if all these confessional statements are read very carefully, it would appear that there are material discrepancies which are not explained by the prosecution. Tauqir Alam in his judicial confession Exh.58 has stated that about 1 and / months before the incident he, Nayar Mirza, Zafar and Ayoob plumber were taking tea in Cafe Rehmania and talking about hijacking of plane. When Nayar Mirza suggested to kidnap a child to take ransom for which a place would be required, Tauqir offered to provide house of friend of his father. After some days in the second meeting which took place between them in Cafe Dilshad, Nayer informed that he had arranged for a car and driver.It is pertinent to point out that Ayoob was present in meetings at both restaurants. As per programme chalked out by them. Tauqir, Zafar and Ayoob reached at 4-30 p.m. At Block No,10, Federal 'B' Area near the shop of Hakeem Sahib. At about 5-30 p.m. Nayer Mirza came in a white car, the roof of which car was black and the car was being driven by Ishtiaq. Baby was brought in the same car and she was sitting on the back seat and her name was given by Nayer Mirza as Taranum. Now we break the story here and see what others have stated about this part and see whether all are consistent in their story.

41. ' Nayer Mirza in his confession Exh.59 after giving detailed account of happenings in Bangla Desh and migration of his family members to Pakistan stated that about 1 and / months before the incident he was sitting with friends Zafar, Tauqir and Ayoob in Cafe Rehmania and were talking about hijacking of a plane. He suggested kidnapping of a child for ransom upon which his friends Zafar, Tauqir and Ayoob enquired if he had any particular child in mind and they all were agreeable to do it. He told them that there was a party whose child could be kidnapped and money could be demanded from them but he did not disclose the name of the child or parents. He further asked his friends if a house could be arranged where the child could be detained.Tauqir offered arranged of a vacant house and said that he would intimate after the arrangement was made. On 2-2-1978 when this party of friends again met in the evening at Cafe Dilshad, Tauqir reported that he had arranged for the house and enquired from Nayer as to what he had done so far his part was concerned. It may be noticed that Ayoob was present in meetings at both restaurants. Nayer told him that he had added driver. Ishtiaq of Shaikh Mushtaq, who is friend of his uncle Aziz Baig. They all agreed and chalked out programme and 5-2-1978 was selected for kidnapping the child. Nayer further stated that he informed Ayoob, Tauqir and Zafar that they should wait at the shop of Hakeem Sahib on 5-2-1978. On that date he went in a white car with black roof to the school where Taranum used to study and when she came out he called her and asked her to come so that she could be left at her house but she refused. He asked her again and she agreed, entered the car and sat on the rear seat. Ishtiaq was driving the car. They reached shop of Hakeem Sahib where Ayoob, Tauqir and Zafar were already present and they also sat in the car. It is obvious from the narration of Nayer that he did not say anything as to what transpired between him and Ishtiaq and what was agreed between them when and where.

42. ' Now we come to the judicial confession of Ishtiaq Exh.

60. He stated that at the relevant time he was working as Driver of Haji Mushtaq, who is a friend of complainant Aziz Ahmad Baig. At the Bungalow of Aziz Baig he used to exchange greeting with Nayer. Two or three days prior to the incident Nayer Mirza met him in a hotel near Water Pump at about 7 or 8 p.m. And suggested to him that he had chalked out a programmed to kidnap the girl of Aziz Baig and would take ransom of Rupees one lac. Nayer further asked Ishtiaq to arrange for a car and he would also get equal share in the amount. Ishtiaq further stated that on 4-2-1978 at about 8 or 9 p.m.Nayer, Tauqir, Zafar and Ayoob met him at Dehli Muslim Hotel (none of them confirm this) and told him that on the next day he should come at 4 or 4-30 p.m.With a car at K.M.C. School which was situated at Block No,10, Federal 'B' Area, Karachi. Ishtiaq further stated that after that he stole a white colour car which had a black Patti from Block No,3, Federal 'B' Area, Karachi and reached the School, where he met with Nayer and during that time School was closed.

43. At some distance a girl was standing whom Nayer called by name Taranum and offered her a lift but she refused. Again Nayer told her that her mother was calling and on this the girl sat in the car.

44. After some distance near a cabin Tauqir, Zafar and Ayoob were standing and they also sat in the car. From the narration of Ishtiaq, it is very clear that this statement to the extent stated above is not at all consistent with the statements of Nayer and Tauqir. He has contradicted both of them by stating that he had met them one day before at Dehli Muslim Hotel. It is also clear that Ishtiaq Ali also stated that he came to the school directly where he met Nayer Mirza. On the other hand Nayer Mirza has stated that he came to the school in the car on 5-2-1978 where Taranum used to study.

45. While Tauqir and Nayer speak about shop of Hakeem Sahib as place of waiting for others, Ishtiaq All simply stated that after the girl sat in the car after some distance near a cabin Tauqir, Zafar and Ayoob were waiting.

46. ' Ayoob in his confession Exh.61 stated that he was working as a plumber and at the house of Kursheed he met with Zafar and they became friends. Through Zafar he met Tauqir and Nayer and they all became friends. On 3-2-1978 he was asleep on the plot where Zafar came and told him that they had chalked out a programme to kidnap daughter of Aziz Baig. After that they would demand Rs,1,00,000 from him as ransom for return of his daughter and the money would be shared by all. After kidnapping the girl she would be kept in the house of Tauqir. Ayoob further stated in his confessional statement that Zafar told him that he and Tauqir would meet him on 5-2-1978 and would take him along with them. Nayer had arranged for driver and vehicle. Ayoob further stated that thereafter as per settled programmed he, Tauqir and Zafar reached the ground near Madina Masjid at about 3-45 p.m. On 5-2-1978. At about 5-30 p.m. Ishtiaq and Nayer brought girl Taranum daughter of Aziz Baig and in a car and they also set in the said car. Now on the face of it story given by Ayoob in entirely different from the story given by other accused persons as narrated above. He does not speak about meeting all except Zafar and all on the day of kidnapping.

47. ' Zafar stated in his confession Exh.62 that at the relevant time he was studying in Saify Coaching Centre in Azizabad where he and Tauqir met and became friends2He was also friend of Nayer Mirza and he introduced Nayer and Tauqir to each other. Ayoob became his friend through Khursheed. Zafar further stated in his confessional statement that he came in contact with Ishtiaq through Nayer Mirza. About 1 and months before the incident, he Nayer Mirza, Ayoob and Tauqir were taking tea in Cafe Rahmania and they talked about hijacking a plane. Nayer suggested to try some other idea from which money could be earned easily. On being pressed as to what it was, Nayer replied that a Baby should be kidnapped. All friends present there asked Nayer that if he had any party in view, whose child could be kidnapped for money then they were all prepared. Nayer suggested a plan of kidnapping a child but did not disclose the name of the person whose child was to be kidnapped. He asked for arrangement of a house. Tauqir offered to arrange for the house. On 2-2-1978 at about 7 or 8 p.m., Zaffar, Tauqir, Nayer and Ayoob gathered at Cafe Dilshad where Tauqir told them that he had arranged for the house. Nayer told them that he arranged for a car and, therefore, everything was settled for the kidnapping of a child. As per programmed Zafar, Tauqir and Ayoob reached in front of shop of Hakeem Sahib in Block 10, Federal 'B' Area, Karachi and started waiting. At 5-30 p.m. Nayer and Ishtiaq driver came in a Fiat Car of white colour with black roof. In that car a Baby was sitting. They also sat in the car.

48. ' It is clear from the narration of the first part of confessional statements of the accused that they are inconsistent and there are discrepancies which are very clear and conspicuous that all these accused persons do not see eye to eye so far the first part of the story is concerned.

49. ' Now we take up the second part of the story. Tauqir stated in his confessional statement Exh.58 that after he, Zafar and Ayoob sat in the car, on the way they bought and gave chocolates to the baby and took her towards Gulshan-e-Iqbal. At 6-30 p.m. They reached at house No,564/2 and while coming out of the car baby tried to raise cries and Zafar put his hand on her mouth and she was brought in the house where her month was tied with handkerchief. Nayer consoled her and Ishtiaq went away with the car. Baby slept at 9 p.m. Nayer also went away. Tauqir further stated that he, Ayoob and Zafar stayed there. On the following day Zafar and Nayer came there and wrote a letter on a rough copy. Letter was written by Zafar and then copied out by Ayoob on a separate paper. The same was handed over to Ishtiaq for delivery to Aziz Baig father of Taranum. Rupees one lac was demanded in the letter to be delivered at Kala Board. Since Aziz Baig informed police, Nayer alerted others to be careful and not to go for collection of money. On being disappointed Nayer suggested to have intercourse with the girl and then kill her.

50. ' In this context Nayer stated in his confession Exh.59 that at the shop of Hakeem Sahib, Ayoob, Tauqir and Zafar also sat in the car and they all drove the car on various roads and finally came to Gulshan-e-Iqbal where Tauqir had arranged for the house. On the way they provided chocolates to Taranum. When they took out Taranum {{BLUR PAGE}} oaltervlon f,13 !"',=:TJX.-Ve, 79flYn (19vi",.? 'F'1011 from the car she was4turprieed to .Age the s#ge place end_xtie raise cries but Zafar put his hand on her mouth to keep het sit ait then she was taken insIde the house, where doors and windows o VA house were closed. Taranum started weeping, therefore, her mouth was tied with handkerchief. Nayer further stated that he and ishtiaq went away. Ayoob, Tauqir and Zafar stayed back in the houge: -3"Nayer further stated that on the following day after performing his duty he came back to the said house and found Ayoob, Zafar and TauqirAitting there. Taranum was weeping. They consulted each otheri440, write letter, to the father of the girl and to demand money'flAtAftW.Aeirote letter. On "rough copy and Ayoob made a fair copy at)it: Letter:Aiat handed over to Ishtiaq for delivery to Aziz Baig. In tiWelletter'.Demand was made for, payment of Rs,1,00,000. After sending'-the, letter,1atar made a telephone call and asked Aziz Baig tG eMne *Ith'its.1,00,4300 to Kale Board. Nayer. Nrther stated in his cobfekikki stikitt-'his uncle Aziz Baig contacted with the police so he ailed hie-Triends not itifge Kale Board.On this all became frustrated and it was realised that if Taranum remained alive ,And en back she wOuld expose;-41kiiit was, therefore, decided to kill her and before (doing that its rape her. On this aspect Ishtiaq in his confession Exh.60 stated that after Tauqir, Zafar and Ayoob sat 4n the car, baby asked him as to where he was taking her and on this Mayer replied that she was being taken 'to a nice place. On this she started weeping and thenNAyer Mirza put -his handkerchief 'Ity, it er: mouth - , Ishtiaq further stated that they went to Gulshan-e-Iqbal where door of the house was opene1:1:4Y-4#u51K-#0 Ahey entepecwith,baby. Other four accused persons stayed ,there while Ae left witliathe car,and, abandoned it in the . Jungle of New Karachi.

51. Lcf,n the following day again went to the said house at 4 pAthand sound Zafar,-,, Tauqir, '4-bob and Nayer sitting theiC5tlayetoteld -Aim that letter of demand of Rs,1,00,000 would be given= -to film for delivery to Aziz Baig.He replied that he would go to the house of Aziz Baig with Haji Mushtaq and would -049iverAbe letter. On 77,2-08 Ishtiaq drove Haji Mushtaq to the houtwpf4,,Api* Baig and waited there when Tauqir came on cycle, handed, oyerf(Aetter to him which '41 delivered inside the house- ishtiaq further stated in his confession that 6042=1978 as-'per routine 'lie again went to the Laid house and Nov Zafar, Nayer and Ayoob present :tkere4le and otheraAhtl Od-$4.;:a programme for raping her.Ishtiaq tAkeketl,Ntiyer about moosykgirty replied that police was searching them., it is 00.i,d(4. Thstveriron; of Ishtiaq is different and according. To: higi. Asked him A,IfAckwhere she was being taken. Others Aid not say so.

52. Secondly it who put handkerchief on the mouth of baby when she starte4 w.Eping on the way.

53. Others have said that Zafar closed the:, mouth" of be,:Y Ishtiaq also does not talk about I chocolates purchased, and '-ofrOciS... The baby on the way. Ishtiawielaiits! That tie left others:,_ at the lkise and himself alone tookthe car back while Nayer, has stated thf4illtAnd --lsiltkag,went back ' together,,t0thertis-bAve not stated 840!P4410,61,ii* letter on cycle to the-,houStA efs,Algigniiaig to be handed. -, 9m.,,ip: IN40c1 tiff% ii OW "Fyi trck, Azig,.,0 1 l'Ilytir *himself has not Stated so in his aN 911109esMon Exh'.58. Even , i;. Otileilialikt that letter vindIhNhded over wto,lahtiaq for delivery to A -,i'' tavlit dittilhot say that It wee' handed over to Ist y b Taaigk Who' 6aifi on cycle to ' 'thektbrinninnOf 'Aziz ...i, . Sn Intl Ds9 vs ,, . ,Api-9 nisiii0 13a1g. I .,, : gc. ,- " ..., .0.:41,ralinalka el 893bi000tit2, f...,9tAtvolci y.941{{BLUR PAGE}} {{BLUR PAGE }} Ayoob stated in his confession Exh.61 that about 5 or 5-30 p.m. Ishtiaq and Nayer brought the girl in the car and they also sat in the car. They took baby to Block No,2Azizabad, Federal 'B' Area, Karachi.

54. Tauqir opened the door and took the girl inside the house. Ishtiaq went 'hack ,alongwith:car. At night he and Nayer also went away. Tauqir and Zafar stayed back in the house to look after and keep an eye; on the.-,girl. :=.0n1:the following day he again visited the said house and then went - baeit. Nayer .Mirza used to come at 4 or 5 p.m. And-=used to go .i3aalik, at Aiwa . Nayer used to convey the news of the house of Aziz BaigRoKyobb-,Turther stated in his confession that on 6-2- 1978 ,-when he .Reaehedlthere, Nay*A.:'showed him a letter with a demand of Rs,1,00,000 from Aziz Baig and asked him to copy out as his handwriting was good. Zafar gave him a ball pen and note book. Oa% further stated that he copied the contents oP the letter. Letter Was sent to Aziz Baig 'througekiriver tatiliaq. Agaittlon 8-2-1978 when e reached there Nayeri.Iold-iiiiii that -there'was no hope for money as 64e was searching. All flikte of theM"Viiesent there had settled to it,rape with Taranwit.It would be 'Pertinent to mention that Ayoob tit speak about crying of the girlie did not state about anybody riri Iter';.:Inoutlf-H3Oh' handkerchief. He his& did not say that Tauqir Went on 'cycletdf-iiiiiiili over letter to Ishtiaq at the residence of Aziz Baig.

55. 1.` Js e;491 -7.. Zafar stated ,in his confession Exh.62 that baby was sitting in 4hP ;bar on thta mar seat and,Nalier Mirza was sitting beside her.He, irittMik, mdfi,,utycglizi -,41180 sat inai,,the car and proceeded ,towards 44/Asp -44T4q$101 4Ad 6-30 p.m,: they reached the house of Tauqir.

56. If)hiletcpqa4nutftit v07,,the, car Taranum raised cries and he put his hand igi,:h9r,-moutlir,(tA *0_ her mouth, They took her inside the house and tied her mouth with handkerchief. Ishtiaq went away and Nayer Mirzaafter consoling baby also went away. He, Ayoob and Tauqir remained ,Iii thi' hOUSe."tiV the following day he and Nayeti.Iprepared a letter ilidif!fVidIS tblghff,WrittRflanablttn a fair copy wa6''rmade by ,AyciOV. .'t IVleitiil. s- Witiii to TliiiRi iiii's father through'ifihtiaq. In Wig Yeti* !Rig, gliitsolas5iiikad to piWits.1;00,003 for safe re"tilifh of his sleuth . - `fiTaisItlistiiefc.`stated in his3ionfell(siOn that he made rte.-telephone callito `.' zizIttifi."Trom publiC feleOlioneirt Super Hig?viinVasked himkotO wing money at Kala- gctard:"LateiciNayer inforili that Aziz Baig has fikortiediVentkificelillit 144,..:tol.hole9idea should be` given up. They were 111 diSSAliallifteitsiiniittiYei$Melli6 kil114he girl after raping her alt0 ifild ,:,. Third part of the proseRAtilF case is raping and killing of - - 134Rnuip.Pn-,this point Tauqir stated-yin his confession that on 8-2-1978 4tii.4 441.4 Knit 'ftrst he had onter0ourse41(.1#0 baby and thereafter arimidi9Nfixer3 cipd,,lastlat Ishtiaq. UK tamp his stateisAnt and ,-A44,editolit Armily3Atiack AihcfthereafttrAsTo,4d" intercourse tith the ticipx., ,Thlgo twit4at bai4,:hecame senuriuOrtpcieus and was deeding shefivAy/ittiyeA,,,arranged foriltrrne saiiitar)ctillwef 1p stop the blood and 4409 A., .,,,,,,,4e lent away N9his house. 1 '94-ipfit plan was made for ,. .Atgatte went t 4#1,,,,x PaiO4jii , aLod purchased one gunny ii.,

1. n R.). r.:4..Iy, cti Rif,, yc after tiy ' the bality, 1H8F-.4tirther stated in his _rope and gut iliisr.A0p,in. They all made baby tt**Itli,wan an 4R! ' r 6,,Y 13 iii cg ,And Ishtiaq jointly caught hgda961,,PiretsiSu iwitti handkerchief with such force that she was still alive a there AT, Nayer Mirza ti. ,4 neck with efilpg the handkerchier, it was noticed . ..;# er{{BLUR PAGE}} t .tYeth-PP4rhe, Rulk.IA a rope and pulled it and then tied her hands and legs and she was put to in a gunny bag. Nayer checked everything belonging to her including her shoes and put them into gunny bag. Ishtiaq brought a Suzuki pick-up which was covered and they all put gunny bag into Suzuki and came to Yousuf Plaza and threw the gunnybag containing dead body near a wall of Yateem Khana. From there they went to water pump and got down from Suzuki and went to their houses. Ishtiaq went away in the Suzuki. On 23-2-1978 police arrested him at 2.30 p.m. And he pointed out shop from where he purchased gunny bag and rope. He also pointed out his house from where police recovered his bed and a small pencil belonging to Taranum which were taken in custody.

57. ' Nayer Mirza stated in his confession Exh.59 that first Tauqir then Zafar then he then Ayoob and lastly Ishtiaq raped Taranum and she became semi-unconscious. She was bleeding heavily and he did his best to stop blood by wrapping cloth. On the following day they all decided to finish Taranum and throw away her dead body. Tauqir brought a gunny bag and rope. At 8 or 9 p.m.

58. They made Taranum stand by the wall. Ayoob, Zafar, Tauqir and Ishtiaq caught hold of her arms and legs and he (Nayer) put his handkerchief around her neck and tied the same whereupon her eyes came out but after releasing the handkerchief it was felt that she was still alive, therefore he put rope around her neck and tightened it. Thereafter, they tied her legs and hands and put the body in the gunny bag. He checked all the belongings of Taranum and put them in the gunny bag .

59. Ishtiaq brought a covered Suzuki Van and they put the gunny bag in it and came to Yousuf plaza where near Yateem Khana they threw away gunny bag containing dead body. He was arrested on 23-1-1978 from the house of his uncle Aziz Baig.

60. ' On this point Ishtiaq said in his confession Exh.60 that they all one by one raped Taranum. First Zafar, then Nayer, then Ayoob and then he (Ishtiaq) waited for his turn out side the room. Ishtiaq further stated that he peeped inside the room and saw Ayoob having made Taranum lie down on the ground with her face towards ground and was committing unnatural offence with her. After Ayoob he raped her on which Taranum became semi-unconscious. He went away. On 9-2-1978 he came back at 5 p.m. And saw everybody there. Plan was made to kill Taranum. Nayer Mirza strangulated Taranum with handkerchief while others caught hold of her hands and legs and shut her mouth. Nayer Mirza tightened the handkerchief and she died. Nayer Mirza told him (Ishtiaq) to bring a vehicle. This is so stated at page 248 of Paper book but according to original record it is stated that Nayer Mirza then put the rope around the neck and pressed it and then she died. It is further stated in judicial confession that thereafter, Tauqir went away to bring rope and gunny bag.

61. Ishtiaq went to the house of Haji Mushtaq and brought Suzuki Van in which dead body was carried in a gunny bag and dropped near Shia Yateem Khana. All went to their houses. On 23-2-1978 police arrested Ishtiaq at 2 or 3.30 p.m. He got the Suzuki Van recovered in which dead body of Taranum was carrit.d and thrown. It is obvious that only Ishtiaq has stated that Ayoob committed unnatural offence with Taranum while the other two namely Nayer Mirza and Tauqir stated that Ayoob also raped her. Secondly only Ishtiaq has stated that he was waiting for his turn out side the room while others have not stated so.

62. ' Ayoob in his confession Exh.61 stated on this aspect of the story that they all decided to commit rape with Taranum. First Tauqir raped her then Zafar then Nayer and lastly he i.e, Ayoob raped Taranum and also committed unnatural intercourse whereafter she became unconscious. This is so stated at page 252 of the Paper book but in original record it appears that after Ayoob, Ishtiaq also took his turn and after that Taranum became unconscious. On 9-2-1978 it was decided to kill Taranum. For that purpose Tauqir brought a gunny bag and rope. At 9 p.m. They all caught hold of Taranum and tied her hands and legs and shut her mouth. Nayer Mirza strangulated her with handkerchief whereupon her eyes had come out. Nayer then put rope around her neck and she was killed. Nayer asked Ishtiaq to arrange for vehicle. Ishtiaq brought a Suzuki Vin on which posters were pasted. Dead body of Taranum in a gunny bag with her school bag was thrown 'tear Yateem Khana.

63. ' Zafar in his confession Exh.62 on this point stated that on 8-2-1978 Tauqir committed rape with the girl and thereafter he (Zafar) and then Nayer and after that Ayoob and in the last Ishtiaq committed rape with the girl where after the girl became unconscious and started bleeding profusely. Nayer tried to stop blood by putting cloth. On the following day they decided to kill her.

64. Tauqir was asked to bring a gunny bag and rope. At about 8-9 p.m. They made Taranum stand by the side of the wall and Zafar, Tauqir, Ayoob and Ishtiaq caught hold of her arms and legs while Nayer put her handkerchief around her neck and strangulated her, whereupon her eyes had come out but on removing the handkerchief it was realised that she was still alive so Nayer put rope around her neck and pressed it thereafter they put her body in the gunny bag. Nayer Mirza put all her things in the gunny bag. Ishtiaq brought a covered Suzuki Van and they put the gunny bag in that Van and threw it near Shia Yateem Khana.

65. It is clear that there are variations and discrepancies in the confessional statements of accused persons in their narration of story of incident. These variations and inconsistencies reflect upon the credibility of the story of the incident. On reading the confessions o all the accused persons, one cannot avoid impression that story is not narrated in a truthful manner. Had the story been true then there would have not been discrepancies and contradictions and variations in the statements of all the accused persons and their statements would have reflected consensus and unanimity on the narration of story.

66. ' Now we have to see what are the legal requirements of recording judicial confession. Section 164, Cr.P.C. Contemplates recording of judicial confession and other such statements by a Magistrate.

67. Statement of witness under section 164, Cr.P.C. Can also be recorded in presence of accused by the Magistrate provided opportunity is given to him for cross-examination. Judicial confession of accused under section 164, Cr.P.C. Can be recorded in the manner prescribed under section 364, Cr.P.C. Further, section 164, Cr.P.C. Enjoins upon the Magistrate in mandatory terms a duty to explain to the accused that he is not bound to make a confession but if he does so it may be used as evidence against him and further again there is another requirement in subsection (3) of section 164 which is to the effect that no Magistrate shall record confession unless upon the questioning the person making it, the Magistrate has reason to believe that it was made voluntarily and when #TBS Prete the provisions of:Section 164, Cr.P.0 whateverii,s.Quoted #TBE #TBS he recordS9any confession he shall make a memorandum at foot of such confessiorl'ifs under:- smst-, "I have explained tO,Aname of accusedYAtiat he is not bound to ni /tic; make .,,,confession ail that if he does so; - any confer stiorr.He aimay make Tax be used as evidence,' tkitarkt him and'clbelieve Ly. bsb--,t!--that this confession was voluntarily Milk1W)i4t was,-titlterHn',3tny brita presence anfk,J)earinio,'4:fi was read oVerqb the persoti'making afar it ,and waszattinitted 14`"ffits to be correct, and it contains a full tiliw and true-account of statement made by him." " egol #TBE {{BLUR PAGE}}a above, it makes one thing very clear that the Magistratip:bas to satisfy himself by, way of a mandatory duty that accused is ,Making confeSsilpti voluntartg.ItVen if accused refused to make confession-SheDie(_npt t#91* handed over to the same police. -441-iiiiA f1169YSY 'rash Government. Of Sind have issued "Federal.

68. Capils1 and in d Courts Criminal in which in Chapter VIOrf 10' Upes are provided as to hows.The-,Magistrate should cgo almillicit On Ss-al-on' litst must obtain prescribasp,foRjor rsppr lud ego iltdeg rk , its latt&what requirements= areAck,be,met. It iS,',SttiNCtfierein a mob ,,, ,,,, t,,,, er, r* I , must remove ,accused 4Tom,[the;,,pustodywoc ,,r0. '09citi ' Veil:gaily* the accused that' he is not botind vtO make ;a .:4OnTeSailii tYlit it!. hie1/2. /bide one the , r sane. Could:, be used, ase. Evidence , gaikiSt`Iiiiiir. Wetitiity must- le given one hour time for rptleokfix160' ',1.9;itietli this POlie*,-w111611 brought him for confession,shOOX jr, ee - atoilig to la OW-Jacobi:is to him. Sections 163 and 164,;,Arhg1t,,,,,lherV.Tead 14 .'JaStiliOns'44 a:the Evidence Act would show :tiiati,:cblessiiin l'liiutd'URtirreleveril,VTithe same, obtained ,by inducement, 'Lteiir"oe riiiiiiise7* Mtitiatiktth should ti, find out length af,tfaeduring Wif,c:-sUcU reM*ed liil police ibtiatod y .

69. Magistrate should examine. The4?00-ort. 441Witied)'''fir'fibeiVtit if ntltere were marks of violence."'

70. Magig i'atb Vat' dent the 46WinVid84,6 ladielal custody after recording, the confession, , 91.9/1 t.Tinx sasit: el il __ loitiothe case of Nezir Ahntast).*.Vi'ingoEmejim84,a Iii*ogokig,..,.aC 253 -Wives held that the rule - whiet applies .-5iisv thttlrilerf ;14t-bPrerfIs glifeiMo do a ceritain-thing in a certain wayotheicwinsiinst )4prsifijp n that way or not -at 41,11-, .-Other methods of-Pqrkik- FRkagebtIAM.*Psa ,, Y forbidden. No deubt the Magittritte acting 41,ndort,sections,116A, a 4 4 is not acting ''as ,?.Tif)tbiirt , yet bitte is a judieiain,01438rto4nOvAPOIRN a matter of construction and oflgood- sense, ,Ahezigulig, rtlisoymoitikkbahito section 164. Sections 164 and:A64 must-:beektatedwattApti,poinstmed together, and4,;yfalftid, be an unnatural., construction to hold that any other-,ffNedumiwas'_ permitted than afar Afeifibillifd doWn with such minute - partiouktrity in the sections thealse/Vei64'1, - - - *-- : briz nen.- I In'Ithialease of Mst. Bakhat Bano> v . The ,Crown P; ,L..

71. Lah. 68 firs which it is held thateonfession is inadmissible in,avidence unless the Magistrate is found, to4tavelmade real and ,a0sminit404 ies which he was bound to db asftwits-,voluntary-lnatbtre,-before.Reeer _ g it. Irregularities in retarding:A confession vanDbe cAPP401410..P;,11,otion 533 Or C'r'iminal Procedure Code c'ttitt.Y4toisytullyz when 1 tqaogOtiltim is satisffed'ithat the confession= had "beet isadeddulyealtbAugh it oopot recorded litig,. In otifelK9iitfrats?-thexttnatter-sis.Aartelot ttalitelanceasaltoot mei,64.:itfatal .Form, on Jefti Joe11s sib- of ai rbidw tai notiosa lo (E) ft' wuXsfq,._: erif iingitRfAJO SItt 110-k a asia qi bniiT/korgtnia,-,,a ,,,4 hR, s.Opse 4w, Eip 'in e su DAct" ft 11fifteial e, :Jv 110%;89`.! 3-,L 5781'far8thi{{BLUR PAGE}} {{BLUR PAGE }} ,r11, confession ' ,,,,t in tha.lerieS is decision of'`piVision 'Bench Of- our Ellat- Ciburt fl caseib-rAlidul Haleem v. The ;State 1984 P Cr.- V-4 6117-lb,,whicb,,it is held after reference to the case law that the Courts must look for strict cOmpliance of subseCtiba (3) of section 164, Cr.P.C.- before proceeding to determine the voluntary character 4::kf the cdtifiseiohatatatementFurther guidelines; are;-Prik.Prtbecl.For recording it "etlitifeaelbti laa"hasrbetwstated above and tbeGenpbasis is on the fact ; Wit clhe Magistrate chiusts ask several questions in order to satisfy ithigell that ths,eohl,easicin la Neill MarY - . a 9it.,od -; i- )b il,...'4_,J,,'---.',0_4.i,' 4,.: 4 - ,. q41 ' r,r.?4,4(0-ox.Prkpou k;opii,:ivioistraielitelYage 217) has deposed tha,i,p0i-;,in -.7 a.,,,.. a, agis ra e First"-'Class' - - ass and Assistant an '4, 4 gl if .1p70"p' ."iiii '-citi ''''Y 1 Ir ttqc'et d A t t cSoffifn*L99.Gr.4ip0. Training :11iiii received a telephonic call fvoM Deputy CcatilisyWnerllesiOn '61404 ititn to record statements rbf accused: persons in 49 AelloU0ii ease and 'after recording them iriftirhi -,him . T his ia.Lttie,.liet4iiimg of the deposition of learned MittlatrattIillifdriwe noticed that -.,a,ccArfitt9g,t4 his own ' admission he was ' still tindattraimilg and he' was, Ortptc0..4':the06,Alir t oismisaieherrnblOnly,tti;,reebrd:honfessions to- report -,:tiik4 ,:- oAhnit is further deposed by Mr Ziffahti, that since ckpoyse#, iirtit9is 'in '`e sensational case- but he was`- ftirther-. Directed he had a-SSafi, /*al with no - chantber, he bOritliretrijtheliChamber- of another Magistrate nyestigating Offiter Mohammad' than gave him an application for reCcirdihg confessions of accused perahns under section 104, .. Cr . P . c . w nic h la produced by him as Exh .6? .53-cj This application p*h.57is on the record and perusal of original shows that it is written in English by I.O.Ylohammad Khan and there is prayer- in it: that copies Of such statements be allowed. The -Magistrate was also pleased to-pass order on the said application as '-"Allowed". This selearlyiSTiowsunxitty On the part of InSpector Mohammad Khan whoVhitid triiitigktT,"personally the accused persons to the Magistrate and'ha& fited-Mit application with prayer fq;;Cytaining copies' of confessional= statements as he knew )iefore hand is to`'What the confessional statements would be like. awl - In thekegamination7in-chief, Mr.Chishti stated that he first asked iftiviuestions.-separately set, out and then gave them time of half an btatfctor,:refiection4. First .41-e- recorded confession of Tauqir Exh.58, jtherVbfoNayern;,-Exh:59,,tbig) of Ishtiaq Exh.60, then of Ayoob Exh. 61 laitd$ki las* P :of :.Safari ;:, Exhi. 625,w /*Acording to Mr, Chishti, he started 'recording= of the statements at abeAt 1 p.m. And finished at about' 6-30 Vic TAW ,i-J.In..- He put.:,thelconfessions in blaa1mirah under loCk and xey '1iietkon the nekt:daylsant)'!,,therniAo,t,talkyana..0:mr.:ehiMitlStated in his edrolmi- ekamination- before foe. Armik: cbuoi,Platippib..Ta owit;i4str:petions -acted persons were haadetstP iit7,4f19.t,h0-:g.994' '04,9.f;mi...-.1 atiai#t and s t iiperionallY went tot th owl He Admitted, that preltionsly tie, ________________________________________________ Oiled Oithati 1.0. Mohammad :than brought ;431I, accused. Trk,,Als chain -et , which 1 Xiite,,,not a correct, statement. Learned Magi stated that he Iibiaked Mohammad', thanfito ,_remove 44 AfiRcl..49FAAJ-9!.47cOaecl, persons and !Bttleri:' be-- gave -thenvilwarbinai,15 awl ,left-; accused KrsOns in the ! - Cotirt rottisitur& went tcr his chapohehoHe admitted that fri'mfth# Chamber{{BLUR PAGE}} only dies in the Court room was visible and,,,uot any ;I:411er Ett.Tiof:,tne fig.PKt 17,9PM, k9gused persons,, were made to sit not on the (ilea biit in Lai 1410e timiti; iii4! The 'ii-iatie IfilViOrri d a if" ctiiit side the Ctigtit.-rdom there rwtilo vard. - In 'tq54'oitiabeti' beiAgo of4,:,-courvfrioNii Fandbgthe elykiffier,', - ere; was Police giiiiiillf.',9*.r.' Cliiiiiiii'CoUid not Sey,,tts - to, bow ' nyaP046e1;:iiiteers had d'oille-- with MuhilifOliti'''Rhan When he gave warnings'to the accused Wersons. When he ii4iietback- after warnings to{{BLUR PAGE}} accused persons, he did not know what was happening in the Court room. On this account judicial confessions became defective because of failure of learned Magistrate in exercise of proper care to see that accused persons reflected independently free from interference or fear of Police.

72. Mr. Chishti admitted in his cross-examination before the trial Court that he put no questions to the accused persons about maltreatment of police or that they were beaten up by the Police. Further also he did not inspect their bodies. In these context learned Magistrate stated further in his deposition that his house was 50 paces away from Joharabad Police Station. He knew that incident was given wide publicity in the papers, After arrest, accused persons were shown to the public which he learnt through newspapers, He also learnt through newspapers that accused persons were produced before a Press conference. We think that in such circumstances it was all the more necessary rather imperative for the Magistrate to have made specific enquiry in that regard by asking such questions and he should have examined the bodies of the accused persons in order to find out whether there were any marks of violence of Police torture. On this account also judicial confessions become highly defective and involuntary particularly. Before the trial Court the learned Magistrate went on further to state in his deposition that he read in the papers that accused persons were beaten up and they were not able to move and one such press statement was attributed to him. The learned Magistrate further denied having made such press statement and stated that he did not deny this fact straightaway in the papers as he was not entitled to do so.

73. However, he protested to the D.C. In writing and subsequently Press release was issued by the D.C.

74. On 2-3-1978, copy of which is Exh.63/3 on the record, according to this Press release it was denied by the D.C. That Mr.Chishti made a statement to the Press that accused persons in Taranum's murder case complained of police torture at the time of their recording confessions. Further, Exh.63/4 is cutting from daily 'JANG' dated 28-8-1978 which is statement attributed to the Magistrate. The learned Magistrate has admitted very frankly in no uncertain terms in the cross- examination before the trial Court that after the recording of judicial confessions, he had to remand accused persons to judicial custody but since he did not inform In charge Lock-up City Court to wait and did not call for Special Police Squad from Risala Police Station or any other Police Station, he handed over the accused persons to the same Police Squad which had brought them for recording of judicial confessions so that they may be sent to judicial custody. Learned Magistrate further admitted that he did not know whether accused persons reached Jail or were taken to some other place. Even on this ground that after recording of judicial confessions, accused persons were given back the same police which had brought them, voluntariness of the confessions become seriously affected and in consequence such confessions become vitiated and devoid of evidentiary value. Reference is made to the cases of Wazir and others v. The State PLD 1960 (W.P.) Kar. 674 and Hakim Gul v. The State PLD 1964 (W.P.) Pesh.

75. 1.

76. ' Mr.Chisthi denied that accused Zafar had injuries on his person and his foot was swollen and he was not able to walk. He admitted that after recording of judicial confessions he informed the Deputy Commissioner on telephone. He denied that when Ishtiaq was brought before him he had injuries on his person and had swollen legs and was limping Another defect in the judicial confession is that these confessions were recorded after accused persons had remained in custody of police for five days. Record shows that all accused persons were arrested on 23-2-1978 and their confessions were recorded on 27-2-1978. In this context P.W. 45 Mohammad Khan, Inspector deposed that he called Ayoob on 22-2-1978 and took specimen handwritings from him which he sent to the expert and on the following day after being informed by the expert about positive finding, he arrested Ayoob on 23-2-1978 and at his pointing out arrested remaining four accused persons. Now if Ayoob had really written the ransom letter which was published in newspapers and then when he was called at Police Station, he went there and gave specimen handwritings which were sent to the expert. On the following day when he was called at Police Station he went again and was arrested. We wonder why he did not attempt to run away if he had really written that ransom letter We also wonder why he was so submissive and even he did not resist to give his specimen handwriting for as many as 23 times. Secondly when on 23-2-1978. At the pointing out of Ayoob all other accused persons were arrested then judicial confessions could have been recorded on that day if the accused persons were prepared. At least Ayoob could be expected to be ready for judicial confession on that day particularly after he gave specimen handwriting and report of Expert was positive. Why police took as many as five days to make accused persons ready for theft judicial confessions and the only possible inference which can be drawn is that they were not willing and ready. Inspector Muhammad Khan who conducted the investigation and produced accused persons before the Magistrate for judicial confessions has not in his evidence before the trial Court given one single reason in explanation as to why he produced accused persons for confession on the fifth day of their custody and why not earlier.

77. ' Mr. Abdul Wahab Khan, Special Public Prosecutor contended titlist mere fact that accused person remained in custody of police for some time, would not lead to conclusion that confessions were tutored. He further stated that directions contained in the Federal Capital and Sind Courts Criminal Circulars were directory in nature and its irregularity would not vitiate confessions Reliance was placed by him on the case of Syed Sharifuddin Pirzada v. Sohbat Khan ar.: others PLD 1972 SC 363.

78. This case of Sohbat Khan has been distinguished in another case of Mohammad Nasim Agha v.

79. The State 1978 P Cr. L J 579.Relevant paragraph on this point in the later case at pages 582 and 583 is reproduced as under:- "It is our experience that whenever the accused are inclined to make a voluntary confession, they generally do so within a short time of the detection of their offence or their arrest. The longer a person remains in police custody, the greater is the suspicion that the confession is the result of duress or undue pressure. We are conscious of the fact that there may be special cases where a confession by an accused may be voluntary though there may he some delay in the making thereof or the accused may have been in police custody for sometime before making of the confession. In this connection we may refer to the case of Syed Sharifuddin Pirzada v. Sohbat Khan (supra). In that case the contention that the appellant had remained for 13 days in police custody before his confession was recorded and on that account the confession could not be relied upon was repelled with the following observations:- "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tortured. Remaining of accused persons for some time in the police custody does not affect their judicial confessions. Mr.Azizuddin, A.C.M., who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily."

80. "We may, however, respectfully submit that the circumstances of that case were entirely different as besides the judicial confession, there was a mass of other reliable evidence against accused Sohbat Khan including extra-judicial confession which was made on the very night of the incident to two persons, whose testimony was relied upon. The Courts, on the other hand, generally took with extreme suspicion upon any undue time lag which elapses between the arrest of the accused and the making of his confession, because this time lag can and is often used for putting pressure upon the accused, or giving him some threat, inducement or promise, to make him confess, which factors may not be erased from his mind by the short duration which Magistrates usually afford to the accused for reflection before proceeding to record their confessions. In Manzoor v. State (supra), a confession of an accused recorded after he had been in custody, for more than 24 hours, was excluded from consideration on the ground that the Investigating Officer had failed to give satisfactory explanation for the detention time of the accused for more than the statutory period of 24 houRs, In Eyed Anwar v. State (supra) which was a case under sections 3-, 4 and 6 of the Explosive Substance Act and Rule 43 of the Defence of Pakistan Rules, the fact that the confession of the appellant was recorded after one week of his arrest was held to militate against the confession being considered to be voluntary. In that case also, the plea put forward by the Investigating Officer that he had other duties to perform and, therefore; the production of the appellant for the recording of his confession was put off was held to be clumsy and without any substance. Reference may also be made to a decision of this Court in Abdul Majid v. State, where a Division Bench of this Court held that the delay of more than 40 hours between the arrest of the accused and the recording of his confession would lead to the inference that no evidentiary value can be placed on such confession, if the delay is not explained. As already stated, in the instant case, there has been a delay of 11 days in the recording of the confession of appellant Muhammad Nasim Agha, and the explanation by D.S.P. Altaf Ali for the delay does not appear to us to be convincing or to be worth of much credit."

81. Dealing with judicial confessions recorded under sections 169 and 364, Cr.P.C., same are to be considered in the light of sections 80 and 24 of the Evidence Act. Section 80 of the Evidence Act lays K down that when any document is to be prepared in judicial proceedings before a judicial officer then presumption is attached to that document to be genuine, unless proved otherwise. This section throws burden upon the accused to prove that judicial confession is not voluntary. On the other hand section 24 of the Evidence Act provides that the confession would be irrelevant if the same appears to the Court to have been caused by inducement, threat or promise. It, therefore, follows that if it is alleged by the accused that the confession is not voluntary then burden is upon him but that burden is much less than proof as is clearly contemplated under section 24 of the Evidence Act in which the words are used to the effect that "if it appears to the Court". In the case of Muhammad Ramzan v.The State PLD 1961 (W.P.) Lah. 167 in which it is held that use of words "if it appears" in section 24 indicates a lesser degree of probability than would be necessary if "proof" had been required. The Court has to hold that the making of the confession appears to have been caused by any inducement, threat or promise upon the evidence before it. The inference may be suggested by the confession itself or by evidence adduced by the accused or by the surrounding circumstances which the Court is always bound to take into consideration but the conclusion cannot be based on surmise or conjecture. Whether or not a confession is admissible in evidence is a matter which is to be decided after a full consideration of the evidence and the particular circumstances of the case.

82. ' In the instant case before the trial Court, apart from categorical admissions of learned Magistrate that he did not inquire from accused persons whether they were subjected to violence and did not inspect their bodies, Inspector Muhammad Khan, who has investigated the case, admitted in his cross-examination that the accused persons after recording of their judicial confessions, when they were sent to Jail have filed criminal complaints against him and other police officers about beating which are pending in the Court of Additional Sessions Judge No,V at Karachi. Of course suggestive questions were put to him during the cross-examination about torture by police which he has denied. All the accused persons before the trial Court in their statements under section 342, Cr.P.C. Have categorically stated that they have signed judicial confessions under duress and they have filed complaint against Police officers which are pending in the Court of Vth Additional Sessions Judge at Karachi. Certified copies of two such complaints have been produced which have been filed by Tauqir and Mohammad Ayoob for offences under section 323, 330 and 506/34, P.P.C. And accused persons named therein are Mohammad Khan Inspector, Moinul Islam A.S.I. And Manzoor Ahmad, Head Constable. Date of filing of complaint of Tauqir is 11-3-1978 and that of Ayoob is 25-3-1978. It was further submitted on behalf of the appellants that accused persons after being remanded to Jail made an application to the learned Sessions Judge to be sent for medical examination and they were medically examined by the Doctor on 2-3-1978 under the orders of Sessions Judge and result of examination of Nayer Mirza, Mohammad Tauqir and Zafar has been produced. There is also medical report showing injuries on the person of Muhammad Ayoob appellant who was examined on 7-3-1978. Further, original records' containing these documents in Criminal Bail Nos.336/78 and 348/78 of Nayer Mirza and Muhammad Ayoob respectively have been summoned and perused.In this context, counter argument was raised by Mr. .Abdul Wahab Khan that accused persons in the case were medically examined for potency certificates by the doctor on 25-2-1978 and such certificates Fxh.19, 20, 21, 22 and 23 do not show any injury on the accused persons. Mr. Hayat Junejo replied the argument by stating that judicial confessions were recorded on 27-2-1978 hence absence of injuries on the person of accused persons on 25-2-1978 does not help the prosecution but helps the defence that they were maltreated and subjected to violence subsequently for judicial confessions which were extorted from them on 27-2-1978. It is stated that these criminal complaints are pending in Court and this fact is admitted by the prosecution. It is further stated on behalf of the defence that three Police officers named in the Criminal complaints were promoted after the recording of judicial confessions by way of reward. We have to view this matter in the light of section 24 of the Evidence Act for the purpose of determining voluntary character of judicial confessions only. In that context, the legal requirement is that these confessions appear to the Court to have been caused by inducement threat or promise. For that production of documents stated above is more than sufficient. We do not want proof which will be required in the trial Court which has to decide these Criminal complaints. We, therefore, hold that these judicial confessions are not voluntary.

83. Moreover no satisfactory corroboration is available against appellants Ayoob and Tauqir to supplement their retracted judicial confessions. Against Ayoob reliance is placed on the evidence of hand-writing expert, P.W.43 Ghulam Abbas, who has given positive finding Exh.126. According to this report hand-writing in Exh. 13 tallied with specimen handwriting in Exhs.69/1 to 69/21. The most important and pivotal document is Exh. 13 which is ransom letter. Originality of Exh. 13 to be the very same received by complainant Aziz Ahmad has become very doubtful. According to the prosecution case P.W.4 (at page 110) Aziz Ahmad Baig received this letter at his house which was delivered to him by accused Ishtiaq, driver of Mushtaq on 7-2-1978. At that time Muzammal and Haji Mushtaq were present and they also saw the letter. This letter was taken to D.S.P. Abdullah Khan and delivered to him. P.W.4 Aziz Ahmed Baig who is father of deceased girl refused to admit in the trial Court Exh.13 to be the same letter which he handed over to D.S.P. Abdullah Khan. He was declared hostile and cross-examined. This witness stated further that no Mashirnama of recovery was prepared when the ransom letter Exh. 13 was delivered to D.S.P. Abdullah Khan.Nothing special was elicited in the cross-examination to Special Public Prosecutor except that accused Nayer Mirza was son of complainant's brother and complainant was looking after him after the death of Nayer's father. A suggestive question was put to the complainant that he was giving false statement to save Nayer which he denied. We wonder why complainant challenged the geniuses of the ransom letter, which is the spring-board of the prosecution case. Daughter of complainant aged about 7 or 8 years was murdered in a most cruel and inhuman manner after she was subjected to rape and sodomy and complainant himself was being black-mailed. In such circumstances complainant would not try to save culprit even if he was son of his own brother. Any way there is nothing further available in the cross-examination of complainant which was made by the Special Public Prosecutor on this point. Muzammal and Haji Mushtaq who were present with complainant at the time when ransom letter was received were not examined by the prosecution. Ransom letter was handed over to D.S.P. Abdullah Khan in presence of Mukhtar Ahmad, who has been examined as P.W.9. (at page 157). In the trial Court this witness stated that he met Aziz Ahmed Baig at his house who showed him the letter which he had received. When Exh.13 was shown to him, he deposed that so far his memory went, perhaps this was the same letter again said may be it was the same letter.

84. This witness was very hesitant and subsequently denied preparation of recovery memo. Of this ransom letter. He was declared hostile and cross-examined by the Special Public Prosecutor.

85. Recovery memo. Exh. 28 is signed by Mukhtar Ahmed. Another witness who has signed it is Azizuddin son of Azimuddin. He was examined as P.W.37 (at page 174). In the trial Court he denied that Exh. 13 was the same document which was recovered by the police vide memo. Exh.28 signed by him. This witness was also declared hostile and cross-examined by the prosecution. He admitted his signature on Exh.28 but stated that date was put on it subsequently. He has further stated that he remembered that the ransom letter contained a demand of Rs,1,00,000 and. Was signed by one July Khan and Exh.13 contains all the three ingredients but is not the same letter which was seized. This leaves us with the evidence of Muhammad Mehboob, who is examined as P.W.14 (at page 180). According to him he was called by Abdullah Khan, D.S.P. When ransom letter Exh.13 was handed over to him and he prepared recovery memo. Exh.28. In the examination-in- chief, this witness stated that on 6-2-1978, he was in his office when at about 12-30 p.m., he was called by D.S.P. Abdullah Khan. He made such entry in the Station Diary and produced the copy as Exh.

40. Exh.40 shows date 7-2-1978 and not 6-2-1978. It appears from the deposition of Muhammad Mehboob that he was directed by the D.S.P. Abdullah Khan to prepare recovery memo. Exh.28 and then took the ransom letter Exh.13 to his office, prepared photostat copies, sent them to all police stations and sent the original letter to handwriting expert. This method adopted obviously was not correct. Ransom letter was very important document and when it was produced before the D.S.P.

86. Abdullah Khan by complainant Aziz Ahmad Baig, signature of Aziz Ahmad should have been obtained thereupon and Abdullah Khan D.S.P. Should also have signed it, and then a separate recovery memo. Could have been prepared. Signatures on the ransom letter would have ensured the originality of the letter without leaving any room for doubt. In the absence of such authenticity, we have to rely upon the word of S.I. Muhammad Mehboob who has simply stated that he made photostat copies and sent the original letter to the Handwriting Expert. In the cross-examination he stated that he did not make any entry in the diary for sending the letter to Handwriting Expert. He did not obtain signature or initial of any person on letter Exh.13. He admitted that normally letter is sent to Handwriting Expert only when similar writing is available for comparison. He admitted that he did not give any instructions to the police station where photostat copies were sent. He further stated that he got photo copies prepared in Saddar on cost.

87. ' P.W. 43 Ghulam Abbas (at page 381), D.S.P. Forensic Branch has deposed before the trial Court that on 6-2-1978 he received a letter from C.I.A. Police alongwith questioned document for examination of the handwriting and his opinion. He produced letter Exh.128. He saw in the Court Exh.13 and admitted it was the same questioned document which was sent to him for examination without specimen handwriting for comparison. Cover letter Exh.128 shows that it was written by Mehboob Khan S.I. And further contents do not show that any precautionary measures were adopted to send ransom letter in the sealed cover or handed over personally to the expert. On the other hand contents show that ransom letter was just sent. In what manner it was sent is not clear. In the circumstances we hold that manner in which ransom letter was handled by the police is unsatisfactory as much there is a lurking doubt with regard to the originality of Exh.13. For that reason it would not be fruitful to go into the findings of the expert and comparison of specimen handwriting with Exh.13.

88. ' Against the judicial confession of Tauqir, the learned trial judge has relied upon corroborative evidence of recovery of note book containing draft of ransom letter Exhs.72 and 13 blood-stained sanitary pads which have been found by the Chemical Examiner to be stained with human blood.

89. This, we feel, has been done not with proper judicial application of mind. Exh.72 is rough draft of ransom letter. It is not the case of prosecution that handwriting in Exh.72 is that of Tauqir. On the other hand the case of the prosecution is that note book containing Exh.72 belongs to Zafar. This note book was not produced by Zafar and was not recovered in presence of Zafar. Zafar has been acquitted and this note book containing Exh.72 cannot be used against Tauqir. Secondly about recovery of 13 sanitary cotton pads, the finding of the Chemical Analyser is that human blood was detected on them. It is the case of prosecution that Tauqir while in custody pointed out this house but sanitary pads were not recovered by the police at the pointing out of Tauqir. It is mentioned in Mashirnama of scene of offence Exh.74 (at page 296) that during the search these sanitary pads were recovered from dump of garbage under a mango tree in the courtyard. Sanitary pads were contained in empty paper bag. Recovery memo. Is attested by Manzoor Hussain Shah and Raja Rehmat.Raja Rehmat has been examined as P.W.22 (at page 288). Accused persons in their judicial confessions have not spoken about using these 13 sanitary cotton pads. Tauqir in his judicial confession Exh .58 stated that Nayer arranged for sanitary towel to stop the blood. Only one sanitary towel is mentioned and not 13. Nayer in his judicial confession Exh.59 has spoken about stopping blood with cloth. Ishtiaq Ali in his judicial confession Exh.60 does not talk about bleeding at the time of rape or stopping the blood. Ayoob in his judicial confession Exh.61 also does not talk about bleeding at the time of rape or stopping the blood.Zafar in his judicial confession Exh.62 stated that Nayer Mirza stopped bleeding by tying a cloth.

90. ' Additionally it would be worth while to mention that Tauqir in his judicial confession stated that one Anwar Fatima, daughter of his mother's friend lived in House No,564/2 and he offered that house to be used for offence. He further stated that he shifted Anwar Fatima and others to his own house on the pretext that the same was to be used for white washing. P.W.45 Inspector Muhammad Khan deposed before the trial Court that during the investigation he examined one Mst.Anwar Fatima in connection with the house in which the crime was committed. He did not cite her as witness nor supplied copy of her statement to the accused. ThisAnwar Fatima was an employee of Federal Public Service Commission. She produced certificate from her office showing her residence in that house. Exh.149 on the record is application of Mst. Anwar Fatima addressed to the S.H.O., Police Station, Joharabad. This application is dated 27-2-1978 and request is made therein by Mst. Anwar Fatima that her house was taken up by the police on 25-2-1978 for the purpose of inspecting the same and that now the key should be returned and her possession of the house be handed over to her. Number of the house given therein is 564, Block No,2,Azizabad, Karachi. Inspector Muhammad Khan has admitted to have examined Mst. Anwar Fatima and Exh.

91. 151 on the record shows that she was required by S.H.O. To attend for examination on 3-3-1978 at 4- 00 p.m. In the circumstances possibility cannot be ruled out that the sanitary cotton pads could belong, to the lady named above.

92. The upshot of the whole discussion is that we view with doubt truthfulness and voluntary character of judicial confessions. It appear to us that when Ayoob was called at the police station, he came there readily and without hesitation and he gave specimen of his writing, which were sent to handwriting expert. Ransom letter was already published in newspaper. Ayoob was arrested on 23- 2-1978. He pointed out all other accused persons. From that moment the secret was out. Recoveries were also made. Then why judicial confessions were not recorded earlier and why accused persons remained in custody for about five days. Secondly it appears from the perusal of judicial confessions that all recoveries were made before the recording of judicial confessions and all those facts which were already in the knowledge of police have been reproduced in the judicial confessions. Nothing has been recovered after the recording of judicial confessions to prove confirmation of any particular fact or circumstance appearing in judicial confessions. In the circumstances possibility cannot be ruled out that judicial confessions can be tortured. We have already held above that judicial confessions were not made voluntary and there was sufficient material available to show that accused persons were maltreated and were subjected to voilence.

93. According to the prosecution Taranum Aziz was kidnapped from school in a stolen white car with black top No,KAF.4093.This car was used only for carrying her to the house situate in Azizabad. This car was abondoned in the jungle. Dead body was carried in gunny bag in covered Suzuki Van which was brought by accused Ishtiaq Ali. Strangely blood has been found in the car in which dead body was not carried. Furthermore, at the time of recovery of the car chocolate wrappers and a small pencil were found to support the allegation that these chocolates or toffies were given to Taranum Aziz at the time when she was kidnapped in the car. Prosecution lost sight of the fact that car was abondoned on the same day i.e, 5-2-1978 and was recovered by police on-7-2-1978 vide Exh. 101 (at page 330). At the time of preparation of recovery memo. Only tape-recorder was found to be missing. This car was handed over to the owner P.W.29 Sikandar (at page 332) on 9-2-1978 under the orders of the Magistrate. The car was taken back in possession by police again on 11-2- 1978 after it remained in the possession of owner for about three days. This recovery was made vide memo. Exh.89. At the time of recovery blood was found in the car and three toffee wrappers and a small pencil. Now how can this fact be forgotton that the car was in possession of owner for three days and even before that it was abondoned on 5-2-1978. This only shows excessive enthusiasm of investigating police and in that process incriminating places of evidence could not be collected to connect accused persons with commission of crime.

94. ' Another fact worth mentioning is that it is the case of the prosecution that Tauqir while in custody led Inspector Muhammad Khan and Mashirs to the shop of one Rizwan and in that context Exh.71 (at page 295) was prepared. Exh.71 shows that Tauqir pointed out shop by name "Delux Paint Place" from where he purchased gunny bag and rope. Shopkeeper Rizwan Ahmed was present to confirm this fact and produced a bunch of similar rope which was purchased for Rs,3 and receipt was also taken from him. Now this is unnecessary. Rizwan Ahmed has not been examined by the prosecution. Gunny bag from which dead body was recovered and rope with which dead body was tied should have been taken to Rizwan Ahmed for identification whether they were purchased from his shop. This could not be done perhaps for the reason that gunny bag and rope were sealed as incriminating articles at the time of recovery. Second possibility was that Rizwan Ahmed should have identified Tauqir as the same person who purchased those articles from his shop.

95. Another factor worth mentioning is that although it is alleged that five accused persons subjected victim girl to rape and sodomy but no semen was detected in her private parts. According to report of Chemical Examiner Exh. 146, 13 articles contained in ten parcels were sent to Chemical Examiner including the clothes of Taranum Aziz and 13 cotton sanitary pads but semen was found only on one Article No,12 which is cover of Razai. It is surprising that semen was not found on sanitary pads and Shalwar of dead girl. It is mentioned in Exh.25 (at page 153) which is Mashirnama of recovery of dead body that at the time of recovery she was wearing white Shalwar and blue frock. It is also mentioned in Inquest Report Exh.66 (at page 268) that deceased was wearing white Shalwar and blue shirt. It is not understandable why there were no semen stains on the Shalwar of deceased.Strangely enough the Chemical Examiner could not detect semen in Article No, 6 which were two slides (rectal and vaginal) of deceased girl. When we put this question to Mr. Abdul Wahab Khan, Special Public Prosecutor as to why semen was not detected when the allegation is that deceased was subjected to rape by as many as five accused persons and she was also subjected to sodomy and all the five accused persons were youthful with the exception of Ishtiaq Ali who was middle aged. The reply of Mr. Abdul Wahab Khan was that perhaps the accused persons did not discharge. We would only like to say this much in this respect that incident took place way back in the month of February, 1978 and statements of accused persons were recorded under section 342 in the trial Court in the month of June, 1983 which was after about five yeaRs, So, at the time of incident accused persons were five years younger and in this way five years are to be deducted from the age of accused persons shown in their 342, Cr.P.C. Statements. Accordingly at the time of incident Nayar Mirza was 19 years old, Zafar was 20 years old, Ayoob was 21 years old and Tauqir was 18 years old. Accused Ishtiaq All was 40 years old. Normally speaking if there is allegation of rape by such young persons there could be expected seminal discharge. Strangely enough accused persons in the confessions also did not speak about discharge. We might as well- mention here that prosecution has produced so much other evidence which is unnecessary and has no real incriminating value. Any way our appraisal of evidence produced by prosecution induces us to conclude that prosecution has failed miserably to prove the case against accused beyond doubt and we, therefore, give benefit of doubt to the appellants and acquit them and set aside their conviction and sentence. In the result appeals are allowed and reference of confirmation of death sentence is rejected. Appellants be released at once, if not wanted in any other case.