HAMID ALI MIRZA, J.- This is an appeal under section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975, read with section 410 Cr.P.C, directed against the judgment of conviction dated 6.12.1994 passed by learned Special Judge Court-I (Suppression of Terrorist Activities) at Karachi, in a case State v. Naseem Akhtar and another, Special Case No. 47 of 1994, FIR No.286/1994, P.S. Gulberg, Karachi, registered under Sections 364-A/365- A/302/34 PPC, whereby appellants have been convicted under sections 365-A and 302/34 PPC and have been sentenced to death and their entire property is ordered to be forfeited to the Government and to pay fine of Rs. 50,000/- each and in case of recovery of fine,, it shall be paid to legal heirs of deceased and in case of default in payment of fine, they shall further suffer three years' rigorous imprisonment.
2. The prosecution case is that the minor Anas Farid son of Fariduddin was found missing who had gone to play outside his house on 19.7.1994. After making search for the said minor by, further of the said minor named above lodged report on the same day, at about 2040 hours at Gulberg Police Station, Karachi, which was entered into the daily diary report No. 92 of P.S. Gulberg stating therein that his son Anas Farid aged nine years, height three and quarter ft. In built, wheat complexion and brown eyes, wearing white T. Shirt, red and white coloured naker (short pant) and magazine made Chappal, went out of the house for playing game between.4 and 5 p.m., search was made by his relations and friends but no clue was found. On 21.7.1994 at 2030 hours PW-3 (Ex.5) Sohail Raees Siddiqui lodged FIR No. 286/1994 (Ex. Ll/A) at P.S. Gulberg Karachi stating therein that "on 19.7.1994 his maternal brother Anas Farid son of Fariduddin Siddiqui, aged nine years, fair colour, lean, height three feet, could speak Urdu, went out of his house for playing game at about 4 p.m. But did not return, at that time, he was wearing white T. Shirt,, red and white naker (short pant) and his report was lodged by Fariduddin Siddiqui at P.S. Gulberg, search was made but his clue could not be found but today viz. 21.7.1994 at 5 p.m., one unknown person informed on telephone that the said minor by was with him and on further enquiry he told that he would give the details on that night or on the next day. The informant/complainant further stated that he suspected that unknown accused persons have abducted his maternal brother Anas Farid with intention to commit unknown crime, report is lodged, action be taken."
3. PW-9 Abdul Rashid Ex. 19-was posted as SHO P.S. Gulberg on 19.7.1994. On the said day at about 2040 hours, father of Anas Farid namely Fariduddin Siddiqui came to P.S. And lodged the missing report of his son Anas Farid when Ghulam Rasool was duty officer who recorded the statement of Fariduddin Siddiqui vide Entry No. 92, Ex. 19-A. On 21.T. 1994, father of Anas Farid received telephone call from the accused persons that his son was in their.
Custody and he should wait for the next call, consequently, he informed the police on telephone.
PW 9 Abdul Rasheed deputed ASI Muhammad Fayyaz to contact the father of Anas Farid at his house and take necessary legal action who thereafter recorded the statement of Sohail Raees Siddiqui under section 154 Cr.P.C. (Ex.5- A) which was subsequently incorporated in 154 Cr.P.C, book as FIR. PW-9 after receipt of FIR (Ex. 11-A) visited the house of PW-3 Sohail Raees Siddiqui and confirmed his statement Ex.5/A. PW-9 prepared memo, of inspection of Wardat (Ex.5/B) in presence of mashirs Fariduddin Siddiqui and Moizuddin. On 6.8.1994 PW-9 received a spy information that the culprits would arrive near Ziauddin Hospital for making call for demand of ransom money at about 1930 hours when the appellant/accused Muhammad Khalid appeared at Noor Medical Store, the informant point out to PW-9, the appellant/accused Muhammad Khaild, who used to call on telephone and demand ransom money from the father of kidnapped by when the said appellant was apprehended by PW-9, such Memo. (Ex. 10/A) was prepared in presence of mashirs Syed Mansoor Hussain Nadeem, Siraj Abdullah and PW-6 Muhammad Jahangir Khan and said appellant after his arrest started weeping and said that due to temptation of money he had killed Anas Farid with the help of appellant/accused Naseem Akhtar alias Jalees. PW-9 alongwith police party proceeded from there to the house of appellant/co-accused Naseem Akhtar alias Jalees and at the Plantation of appellant/accused Muhammad Khalid reached there, who knocked the door of appellant/accused Naseem Akhtar's house who came out on hearing the call of co- accused appellant Muhammad Khalid and was arrested and such Memo, of arrest (Ex. 10/B) was prepared in presence of same mashirs. PW-9 alongwith appellants/accused and the police party proceeded to PS Gulberg where the appellants/accused were interrogated by the police when the appellants/accused stated that they were ready to show the place where the dead-body of Anas Farid was lying and they led police party to the house of Fariduddin Siddiqui, father of deceased Anas Farid and then after taking him and others, the appellants/accused led them to an under construction house at Surjani Town, on reaching there they got down from their vehicles when the appellants/accused led them to a place which was under constructed house and showed the dead-body lying in a room which was identified by the father of the deceased by and the mashirs who were related to deceased and the complainant. PW-9 prepared memo, of Plantation of place of occurrence and examination of dead-body (Ex.5/C) in presence of mashirs Fariduddin Siddiqui, Sohail Rasheed and Moizuddin. PW-9 also held inquest upon the dead-body of deceased and prepared such report Ex.5/D in presence of same mashirs. PW-9 on further interrogation from the appellants/accused when he disclosed where the handkerchief which was used by them to strangulate the deceased by was, and they. Volunteered to produce the said handkerchief and led the police party alongwith others to nearby bushes, from where produced handkerchief, Article 'B' and such Memo. (Ex.6/B) of securing handkerchief was prepared in presence of mashirs It.
Khurram Qamar and Siraj Abdullah and Memo. (Ex.6/A) regarding identification of clothes and chappal worn by deceased Anas Farid was also prepared in presence of same mashirs. PW 9 then sent the dead-body of deceased Anas Farid to Abbasi Shaheed Hospital for post-mortem examination and report by Edhi Ambulance followed by one police mobile and the appellant/accused were sent to Police Station through mobile. On 7.8.1994 PW.9 went to Abbasi Shaheed Hospital in order to obtain the report in respect of cause of death, for which he gave such letter to the doctor who made such endorsement on the said letter (Ex.13/C). On 8.8.1994 appellants/accused volunteered to produce the Motor Cycle when the appellants/accused first led the police party to a place from where deceased by was picked up and such memo. Ex.1O/D was prepared in presence of mashirs Siraj Abdullah and Muhammad Jehangir. On the same day, i.e. 8.8.1994 at 1915 hours Fariduddin PW-10 produced audio cassette Article. 'A' before the PW-9 who secured the same and prepared such seizure memo. (Ex.5/E) in presence of mashirs, Sohail Rasheed and It. Khurram and then the appellants/accused led the policy party to a house No. R- 612, Block-17, Federal B' Area, Karachi, belonging to appellant/accused Muhammad Khalid from where one black coloured 120 CC Motorcycle bearing No. KCL-6395, Model 1979, Article-G, on which kidnapped by was said to have been taken to under construction house of Rukun Din and Company in Surjani Town, where the by was killed by them, was secured and seized at his Plantation in presence of mashirs Siraj Abdullah and Muhammad Jahangir, police prepared such memo. (Ex. 10/C) of seizure of Motorcycle. On 18.8.1994, the appellants/accused were sent to ACM by PW-9 for the purpose of recording their confessions and also 164 Cr.P.C, statement by PW Anwar.
PW-9 issued separate notices Exts.13/D and 13/E to the appellants/accused informing them for recording of their confessions. Statement of PW Muhammad Anwar under section 164 Cr.P.C, was recorded as Ex.3/B and confessional statements of appellant/accused were recorded as Exts.3/C and 3/D by the same Magistrate. PW-9 also recorded the statements of above PWs. Under section 161 Cr.P.C, as well as sent clothes and remains of visceras of deceased to chemical examiner for examination and report. After completion of the usual investigation, the appellants/accused were challaned before the trial Court.
4. Before the trial Court prosecution examined nine witnesses. PW-1 Muhammad Ebrahim Qureshi (Ex.3) ACM Central Karachi who recorded 164 Cr.P.C, statement (Ex.3/B) of PW Muhammad Anwar to whom a letter dated 15.8.1994 (Ex.3/A) of SHO P.S. Gulberg was sent for recording 164 Cr.P.C, statement (Ex.3/B) of PW Muhammad Anwar and for recording confessional statement of appellant/accused Naseem Akhtar alias Jalees (Ex.3/C) and confessional statement of appellant/accused Muhammad Khalid /Ex.3/D). PW-2 Muhammad Anwar (Ex.4) who had given motorcycle to appellant/accused Khalid, PW-3 Sohail Raees Siddiqui (Ex.5) whose statement under 154 Cr.P.C. (Ex.5/A) was recorded and in whose presence memo, of inspection of Wardat (Ex.5/B) memo, of Plantation of place of incident and inspection of dead-body were prepared (Ex.5/C) so also inquest was held upon dead-body as per report (Ex.5/D) and Memo, of seizure of audio cassettes (Ex.5/E) was prepared. PW-4 Khurram Qamar (Ex.6) in whose presence Memo, of identification of clothes and chappal (Ex.6/A) of deceased was prepared so also seizure Memo, of recovery of handkerchief (Ex.6/B) PW Moizuddin was given up as per Ex.7, PW-5 Dr. Syed Saeed Haider {Ex.8) who conducted post-mortem examination (Ex.8/A) upon dead-body of deceased Anas Farid son of Fariduddin Siddiqui and also issued supplementary medico-legal report dated 7.8.1994 (Ex.8/B), PW-6 Muhammad Jahangir is the mashir of memo of arrest of appellant Muhammad Khalid (Ex. 10/A) and of appellant/accused Naseem Akhtar (Ex. 10/B) and of seizure of motor-bike (Ex. 10/C) and of Memo, of place from where deceased by was kidnapped (Ex.1O/D), PW 7 Fariduddin Siddiqui father of deceased Anas Farid lodged the initial report (Ex.13/B) about the missing of his son. He is also mashir of inspection of place of Wardat (Ex.5/B) and of memo, of Plantation of place of incident and inspection of dead- body (Ex.5/C) and of inquest report (Ex.5/D) and he produced audio cassette (Ex.5/E) Article A'. PW- 8 Muhammad Fayyaz is ASI of P.S. Gulberg who recorded statement (Ex.5/A) under section 154 CnP.
C. Of Sohail Raees which was subsequently incorporated in 154 Cr.P.C, book as FIR (Ex. 11/A), PWs.
Siraj Abdullah, Syed Mansoor and ASI Ghulam Rasool were given up as being not necessary witnesses as per (Ex. 12), charge was amended as per Ex. 13, Statements Exts. 14 and 15 are of the learned counsel of the appellants/accused and of the special prosecutor in respect of not recalling PWs. After the amendment of charge. Ex. I6 is amended charge. Exts. 17 and 18 are the pleas of the appellants/accused pleading not guilty to the charged offences. PW-9 Abdul Rasheed is the SHO and I.O. Of the case who conducted the investigation as said above. Prosecution closed its Side as per Ex.20. Appellants/accused were examined under section 342 Cr.P.C, as per Exts.21 and 22 wherein they denied the commission of charged offences and stated that they were innocent and were falsely implicated in the case and the confessions recorded were obtained under duress.
5. The contentions of learned counsel for appellants is that the trial Court has erred in convicting the appellants on the basis of evidence v/z:-(i) retracted extra-judicial confession; (ii) retracted judicial confession; (iii) evidence of pointing out the place from where dead-body of deceased Anas Farid was found; (iv) pointing out the place from where handkerchief with which the deceased by was allegedly strangulated was recovered, on the grounds that the said evidence of confessional statements being in contravention of provisions of Articles 37, 38, 39 of Qanoon-e- Shahadat, the alleged recoveries being jointly made could not be used against the appellants/accused under the law, the appellants' confinement after 11.8.1994 till 18.8.1994 was wrongful as it was without remand and the judicial confessions being contradictory and having been recorded after 12 days could not be said to be voluntary and true and the evidence of audio cassette was of no evidentiary value as audio cassette was of no evidentiary value as no expert was examined and there was no direct and cogent evidence convicting the appellants with commission of crime. Learned counsel for appellants submitted that letter for recording the confession is dated 16.8.1994 while the confession was recorded on 18.8.1994, there has been no second warning before recording the confessions, the appellants/accused were arrested on 6.8.1994, they were produced for remand on 11.8.1994 and the confessions were recorded on 18.8.1994 therefore also confessions so recorded could not be said to be voluntary and true. He contended that judicial confession of Naseem Akhtar Ex.3/C stated that: "We both together throttled/strangulated the deceased for half an hour till we were satisfied that he has expired."
Whereas judicial confession of Muhammad Khalid Ex.3/D stated that: "We both strangulated the deceased and left the deceased there. We were having one handkerchief which was used by Naseem Akhtar for strangulation and after killing the deceased, we came out of the room and bolted the room and after covering some distance Naseem Akhtar threw away the said handkerchief, which was recovered by police later on."
He further contended that Memo, of inspection of occurrence and pointing out of dead-body of deceased as per Ex.5/C would show joint pointing out the place of offence and pointing out/producing the dead-body of deceased by. So far the seizure Memo, of audio cassette Ex.5/E, same has not been relied upon by the trial Court. Evidence of PW-4 Khurram Qamar is identical to that of PW-3 Sohail Raees Siddiqui. The appellants/accused are said to have jointly made confession before the police and have jointly led the police party to the place of incident therefore same would not be admissible under the law, and further SHO PW-9 stated that Chowkidar informed him that the dead-body was lying in the said room which place was accessable to every one. So far deposition of PW-6 Muhammad Jahangir Ex.9 it would show that the appellant/accused Muhammad Khalid was in police custody when he confessed his guilt and disclosed the name of co-accused Naseem Akhtar alias Jalees and stated to have kidnapped the by and killed him and his body was lying in Surjani Town. The evidence of PW-7 Fariduddin the father of deceased Ex. 10, is also same a that of other PWs therefore the statement of appellants/accused being in custody of the police would not be admissible in evidence and could not be used against them under Articles 38, 39 of the Qanoon-e- Shahadat. PW-8 Muhammad Fayyaz is a formal witness who registered the FIR. So far PW-9 Abdul Rasheed is I.O. Of the case and appellants/accused were in his custody and from 11.8.1994 till 15.8.1994 their detention was illegal as no remand was obtained by him.
Reliance has been placed upon Faqira and others v. Emperor (AIR 1929 Lahore 665); (2)
Refiqueuddin Ahmed and others v. Emperor (AIR 1935 Calcutta 184); (32) Durlav Namasudra v.
Emperor (AIR 1932 Calcutta 297); (4) Khatas Khan and another v. State (1975 P.Cr.L.J. 172); (5) Abdul Ghani and three others v. State (1976 P.Cr.L.J. 1462); (6) Muhammad Amin v. Bashir Ahmed (1983 P.Cr.L.J. 1574); (7) Abdul Khaleem and two others v. State (1992 P.Cr.L.J. 1314); (8) Naeem Akhtar and others v. State (1993 P.Cr.L.J. 769); (9) Rafique alias Pheki and two others v. State (1993 P.Cr.L.J. 1017);
(10) Muhammad Ashraf Khan Tareen v. State (1995 P.Cr.L.J. 313); (11) Ali and others v. State (PLD 1950 Baghdadul Jadid 26); (12) Manzoor and others v. State (PLD 1957 (W.P.) Lahore 1023); (13) Amir Ali v.
State (PLD 1960 (W.P.) Karachi 753); (14) Ghulam Hussain v. State (PLD 1974 Karachi 91); (15)
Muhammad Iqbal alias Javed Iqbal v. State (PLD 1976 S.C. 291); (I6) Mst. Ameer Khatun v. Faiz Ahmed and others (PLD 1991 S.C. 787); (17) Ghulam Nabi Shah v. Crown^ 1969 SCMR 629); (18) Allah Ditta v. State (1977 SCMR 251); (19) Nur Muhammad and another v. State (1986 SCMR 174); (20)
State v. Kamal Khan alias Maloo and another (1993 SCMR 1378); (21) Muhammad Ashraf Khan Tareen v. State and another (1996 SCMR 1747); (22) The Queen v. Ram Chum Chung and others (24, Weekly Reporter page 36); (23) Pahlwan etc. v. State (PLJ 1974 Cr. Cases Karachi 503); (24) Queen- Empress v. Babu Lai and another (ILR VI Allahabad 509); (25) Gul Jamal and another v. State (NLR 1980 Criminal. SC 357) and (26) Muhammad Aslam Shah v. State (NLR 1993 Criminal 447).
6. Learned counsel for complainant has argued that the appellants/accused were not in wrongful confinement from 11.08.1994 to 15.08.1994 as 11.8.1994 was Thursday, 12.8.1994 was Friday, 13.8.19^94 was Saturday when both days were public holiday so also 14.8.1994 was Sunday and public holiday being independence day, consequently, appellants/accused were produced on 15.8.1994 and remand was obtained on 18.8.1994 on which date the confessions were recorded. However, he further submitted that mere fact that the confessions were recorded during the period when remand of the appellants/accused was not obtained would not vitiate the proceedings of the trial considering that no prejudice was caused to the appellants/accused. He has placed reliance upon Khursheed v. State (PLD 1996 S.C. 305); (ii) Muhammad Ashraf Khan Tareen v. State (NLR 1995, Criminal Law Judgement 105) and (iv) Ffafizur Rehman v. State (PLD 1993 Peshawar 252). He further submitted that mere fact that there has been few days' delay in recording the confessions from the date of arrest of the appellants/accused would not by itself be sufficient to discard the confessions from consideration when the confessions are found to be voluntary and true. Reliance is placed upon Ismail v. State (1995 SCMR 1615); (ii) Munir Ahmed v. State (1995 MLD 1126 at 1133 E); (iii) Qadir Bakhsh v. State (PLJ 1985 Criminal Cases Quetta 357) and (iv) Syed Sharifuddin Pirzada v. Suhbat Khan and others (PLD 1972 SC 363). He further argued that the confessions so recorded by the PW 1 were legal and were recorded in compliance with the legal requirements and the appellants/accused did not say in their 342 Cr.P.C, statements that they were not given warning by PW-1 before recording the confessions. Reliance is placed upon Mahammad Rafique and another, v. State (NLR 1993 Criminal Cases 672); (ii) Spin Bacha v. State (PLD 1990 Federal Shariat Court 57) and (iii) Gul Jamal and another v. State (NLR 1980 Criminal S.C. 357). He further contended that the circumstantial evidence viz. The conduct of the appellant/accused Muhammad Khalid when arrested by police started weeping as deposed also by PW-6 Muhammad Jahangir, so also when appellants/accused same to the house of the complainant Fariduddin PW-7, where they admitted their guilt and led the police party to a house under construction situated in Surjani Town and they pointed out the dead-body of deceased Anas Farid which was lying there and appellants informed that they strangulated/throttled the deceased with the handkerchief which was also secured at their Plantation coupled with the retracted judicial confessions of the appellants recorded on 18.8.1994 proved the guilt of appellants/accused beyond reasonable doubt.
7. So far the contentions of the learned counsel for the appellants that retracted judicial confessions Exts.3/C of Naseem Akhtar and Ex.3/D of Muhammad Khalid are neither true nor voluntary on the grounds urged above have no merit and force.
8. Learned counsel for appellants in support of his contention has placed reliance upon (i) Ameer Ali v. State (PLD 1960 Karachi 753) wherein learned Division Bench of this Court at page 757 para 10 observed "It is now-settled that a retracted confession is not by itself sufficient for convicting an accused person unless it is corroborated by independent evidence."; (ii) In Ghulam Hussain v. State (PLD 1974 Karachi 91 D.B.) Judicial confession was held to be not genuine and voluntary as retracted judicial confession of the appellant/accused was found to be absolutely identical to the appellants' statement to police. It was observed "I regret to say that extraordinary similarity between two statements can only lead to the conclusion that one was a copy of other and Mr. Noorudidn, learned counsel for appellants submitted that it reflected that judicial confession (Ex.
16/1) has been copied from his statement to the police (Ex.A)". In the cited case judicial confession was also discarded on the ground that the said confession was exculpatory in nature, (iii) In Gul Jamal and another v. State (NLR 1980 Cr.S.C. 357) Hon'ble Supreme Court granted leave to appeal to consider the question as to whether the retracted confession of one appellant could furnish corroboration to the retracted confession of the other which involved the interpretation of Section 30 of the Evidence Act in regard to which there was cleavage of opinion amongst the High Courts.
The Supreme Court observed at page 362 "Concluding therefore despite the fact that Section 34 of Evidence Act provides that the confession of co- accused can be taken into consideration still it cannot be treated as a corroboratory fact for corroboration must emanate from a document which, is complete in itself and is not in need of support from any other quarter. Accordingly, it has no corroboratory value as unlike the testimony of an accomplice it is not given on oath and is not subject to cross-examination, though in a given case, if there is other evidence apart from the retracted judicial confession, then by reason of Section 30, the confession of co-accused implicating the other could be irrelevant fact." The above-cited cases do not relate to the contentions raised by the learned counsel for appellants in respect of instant case. There is no cavil with regard to the rule laid down by the superior Courts that retracted judicial confession itself would not be sufficient for convicting an accused person unless the same is corroborated by independent evidence.
9. So far the delay as contended by the learned counsel for appellants in recording judicial confession of the appellants the same per se would not be a ground to discard the same unless it has been proved from the circumstances of a case that the said confession has been obtained by coercion, threat and pressure. Reference may be made to (i) Muhammad Ismail and another v.
The State (1995 SCMR 1615) wherein their Lordships of Supreme Court held that delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Reference may also be made to (ii) Munir Ahmed v. The State (1995 MLD 1126, D.B.) wherein their Lordships of Division Bench observed that retraction of confession is wholly immaterial if confession is found to be voluntary and true and delay in recording confession is not fatal if the Court is satisfied that it is voluntary. It was further observed at page 1132 "it seems a fallacious contention that the retracted confession should always be discarded. Let me make it clear that the rule of prudence usually observed with reference to retracted confession does not require that each and every circumstance mentioned in confession with regard to participation of accused in the alleged offence, must be separately and independently corroborated. In our view, general corroboration is sufficient for the reasons that if the rule required that each and every circumstances mentioned in the confessional statement must be separately and independently corroborated, then the rule would be meaningless inasmuch as independent evidence itself would be sufficient to award convictions and it would be unnecessary to call the confession is wholly immaterial, once found that it was voluntary as well as true, that being the case there is no reason why this retracted' confession should not be taken into consideration. In this regard reliance can be placed on the following:
(1) 1980 SCMR 937; (2) 1969SCMR442;
(3) PLD 1951 Lahore 352."
Reference may be made to (iii) Syed Sharifuddin Pirzada v. Suhbat Khan and another (PLD 1972 SC 363) wherein their Lordships of Supreme Court observed that mere fact that person making confession remained in police custody for some time, would not lead to a conclusion that the confession was tutored and the directions contained in Federal Capital of Sindh Circle Chapter VI Part C that person- from whom confession is taken should be asked how long he had been in police custody such directions merely directory in nature and its non-compliance would not vitiate the confession when sufficient opportunity is given to the accused to explain circumstances in which he was making confession and (iv) Qadir Bakhsh v. State (PLJ 1985 Criminal Cases 357) wherein D.B. Of this Court observed that delay in recording the confession simpliciter would not be fatal considering that no time has been find for recording same and Court is to be satisfied about the same being voluntary in nature on examining the circumstances of a case and the nature of confession.
10. The next contention of the learned counsel for the appellant is that the confessions were neither voluntary or true as it was obtained during the period when the appellants were in unlawful confinement as the remand was not obtained by police. The question for determination for us would be absence of the obtaining remand of the appellant/accused would vitiate the recording of the confessions Exs.3/C and 3/D of the appellants. Remand in the case of accused is obtained under section 344 Cr.P.C. Detention of the accused for want of remand order would no doubt amount to illegal confinement, but it could not be said that the confession obtained recorded by the competent Magistrate after having complied with all the legal requirements of the law would make the said confession to be not voluntary and true. However, in the instant case, 11.8.1994 was Thursday, 12.8.1994 was Friday, 13.8.1994 was Saturday, both days being then public holidays and 14.8.1994 was Sunday and Independence Day, hence public holiday, therefore accused/appellants were produced on 15.8.1994 before the Magistrate as per letter of SHO at page 209 of the R&P wherein the learned ACM wrote on the margin "find on 18.8.1994 at 9 a.m. At ACM office signed on 16.8.1994." However, wrongful confinement would not by itself lead to a presumption that the confessions also recorded were neither voluntary nor true at the most detaining agency failed to obtain the remand within time would liable to criminal prosecution. On the same analogy reference may be made to Hafiz-ur-Rehman v. State (PLD 1993 Peshawar- 292) wherein the learned Judge in chambers observed that detention for want of competent remand order would no doubt amount to illegal confinement and same can be a valid ground to release him on bail.
However, on need not go to th& extent to hold that there shall not be left any option with the Court to release accused fon bail if held in detention under an invalid remand order although the accused may have prima facie found guilty of the offence covered by prohibitory clause contained in sub-section (1) of Section 497 Cr.P.C, when in such circumstances, the Court may refuse bail to the accused. Reference may also be made to Muhammad Ashraf Khan Tareen v. State (1995 P.Cr.L.J. 313) wherein D.B. Of the Court observed that defective investigation would not vitiate the trial unless it is shown that prejudice has been caused to the accused in any manner.
11. The-next contention of learned counsel for the appellant is that second warning to appellants/accused was not given that the confession so recorded could be used against them at the trial has also no force. The evidence of PW-1 Muhammad Ibrahim Qureshi, ACM III would that when the appellants/accused were produced before him he gave them warning that the confessional statements could be used-against them so also asked them whether they were induced or were under any pressure to which they replied in negative and stated that they were giving confessional statements to satisfy their conscience and due to fear of God and one hour time for reflection to each of appellants/accused was given when first appellant/accused Naseem Akhtar was called and after recording his confessional statement another appellant/accused Muhammad Khalid was called. Perusal of the cross-examination of the defence counsel would also reveal that no such suggestion as to absence of second warning to the appellants was made.
Perusal of the Exts.3/C and 3/D confessions of the appellants/accused would show all that was essentially required under the law for recording the confessional statements, was complied with by the learned Magistrate, even if it be assumed that second warning with regard to consequences of appellants making his confessional statement was not given by the Magistrate but the first warning having been given as stated in the deposition of the learned Magistrate, the confessions on that plea could not be said to be involuntary or untrue.
12. Nextly it was urged that there was no reason as to why appellants were making confessional statements, the learned Magistrate in his evidence has deposed that the appellants in reply to such question told him that they were making the said statement in order to satisfy their conscience and were doing so due to fear of Allah therefore said contention has no merit, when the confessions recorded were true and voluntary it could not be discarded. Last ground of attack is that no sufficient notice was given to the appellant before recording their confessional statements has also no merit. The perusal of Exts. 13/D and 13/E would show that the appellants/accused were given notices on 16.8.1994 whereas the confessional statements were recorded on 18.8.1994 and the said period of two days could not be said to be insufficient in the circumstances of the case.
13. PW-1 Muhammad Ibrahim Qureshi, First Class Magistrate in his deposition has deposed that he did all what was necessary before recording the confessional statements and he recorded the confessional statements and he was satisfied with the same which were voluntary and true. No material in the cross- examination of this witness could be extracted whereby it could be said that the confessional statements so recorded were not voluntary and true. Perusal of Exts.3/C and 3/D confessional statements of the appellants disclose minute details of incident and it is stated that deceased was cousin of appellant/accused Naseem Akhtar, therefore, he accompanied him without any hesitation on the motor bike which fact could be only in the knowledge of appellant/accused Naseem Akhtar being dose relative of the deceased. So far root of details, same were sufficient proof in holding that the confessions were true and voluntary in nature.
Besides, no animus is shown by the appellants with the complainant's family for implicating them in such heinous offence. Reference may be made to (i) Muhammad Rafique and Qalandar Khan v.
State (NLR 1993 Criminal 672) and (ii) Ch. Muhammad Yaqoob and others v. State and others (1992 SCMR 1989) at 2014 where their Lordships of Supreme Court observed: "19. From the above-cited cases, inter alia, the following principles of law are deducible:
(i) That if a statement of fact made by an accused in a confession is of the nature that if it is assumed to be true, it would negate the offence alleged to be confessed, it is called an exculpatory confession.
(ii) That a statement of an accused that contains self-exculpatory matter cannot amount to confession.
(iii) That a retracted confession is sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence it has been consistently held by the superior Courts that the same should not be acted upon unless corroborated by some other reliable evidence in material particulars.
(iv) That though the confession of a co-accused cannot be made foundation of conviction but it may be used in support of other evidence.
(v) That the confession of a co-accused is an evidence of a weak character.
(vi) That under Islamic Jurisprudence, in order to make a confession reliable, it should be voluntary #made and not on account of any coercion, duress or violence.
"Nextly, as regards the production of articles, the evidence is relevant as evidence of conduct under section 8, Evidence Act. Under that section statements accompanying or explaining conduct are also relevant as part of the conduct itself. What we have on the record, so far as the prosecution witnesses examined on this point are concerned is only the fact that the articles were pointed out by the accused persons. If there was any statement may by an accused person at the time Of the production or just before the production of the articles then this statement may very well go in as part of the conduct under the provisions of Section 8, Evidence Act. So far as the evidence of conduct as adduced in this case is concerned no attention seems to have been paid to this matter and the result is that the evidence is in one sense incomplete and imperfect. Lastly, I should also refer to one other matter, and that i$ this. There is one instance in which two of the accused persons are said to have jointly produced some of the articles. In leading evidence with regard to this part of the case. The principle applies not only to evidence relevant under Section 27 but also to that under Section 8, Evidence Act."
(iii) Durlav Namasudra v. Emperor (AIR 1932 Calcutta 297) at page 299, columns 1 and 2 wherein it has been held: "Therefore it is clear from the evidence of the Sub-Inspector that the information such as it was which led to the discovery of the dead-body had been given by these for accused on 12th July at a time when they were not in custody. This circumstance is, in my opinion absolutely clear from the evidence of the Sub-Inspector Trailokya Nath Gogal. That being so, we have now to consider whether under the provisions of Section 27, Evidence Act, those statements were admissible in evidence. I do not wish to cite many cases but it is now clear beyond all dispute that Section 27 is one of those sections which controls the three earlier sections, namely, Sections 24, 25 and 26. In the last mentioned sections the danger of admitting confessions made to police officers or when in police custody is clearly pointed out. But although such confessions are inadmissible under the law, that is, under the sections which I have just mentioned, they may in certain circumstances lead to the discovery of the facts etc., in consequence of the information received from the persons in custody. Therefore the.... Then Section 27 would hit the admissibility of such statements in evidence and under no circumstances that I can think of having regard to the provisions of the law, is such a statement admissible in evidence."
(iv) Khatas Khan and another v. State (1975 P.ChL.J. 172) at page 178, para 11, it reads: "Besides, their testimony does not find any support from other evidence e.g. That of the 'recoveries' or 'identification'. The three accused are said to have led the police, at the same time, to the same pit (in village Khichi, some miles away from the spot) and all their ' weapons of offence namely, gun P.W, gun P.19 and rifle P.15, were Found wrapped in the same piece of cloth. It is not stated as to which of the accused had first had to the recovery or pointed out the place from where the fire- arms were ultimately dug out. It is now well-established that joint recoveries are of no use and are not admissible in evidence. In this connection, reference may be made to:
(1) Amir Ali v. State (PLD 1960 Kar. 753)
(2) Rekatullah v. State (PLD 1962 Dacca 261)
(3) Puttu v. Emperor(A\R 1945 Oudh 235)
(4) Faqir a v. Emperor (AIR 1929 Lah. 665)."
(v) Abdul Ghani and three others v. State (1976 P.Cr.L.J. 1462) at page 1465 last para, it reads: "The evidence of recovery of hatchet is also not' worthy of credit. The recovery at the Plantation jointly of several accused persons cannot be made the basis of drawing an inference about the conduct of such accused persons unless it can be shown with a degree of particularity that such inference can be drawn with respect to each one of the persons involved in the act. This is the view in Amir ali v. State (PLD 1960 Kar. 753). In Khatas Khan v. State (1975 P.Cr.L.J. 172) the view taken is that joint recoveries are of no use and are not admissible in evidence, In this view of the law the alleged recoveries of hatchets do not advance the case of the prosecution at all."
(vi) Abdul Khaleem and two others v. State (1992 P.Cr.L.J. 1314) (Supreme Appellate Court) at page 1319 it has been stated: "Furthermore, the prosecution has failed to prove that the presence of the dead-body at the place wherefrom it was recovered, was in the exclusive knowledge of anyone of the appellants or that any of the appellants had exclusively led to its recovery. In fact, as it is the case of the prosecution that the appellants had jointly disclosed the knowledge in respect of the presence of the dead- body and had jointly led to its- recovery, therefore, the evidence in respect thereof being inadmissible cannot be used against the appellants."
(vii) Naeem Akhtar and others v.. State (1993 P.Cr.L.J. 769) (Federal Shariat Court) at page 775, para I6, it reads: "There is also evidence of the alleged recovery of ear-rings, Exh. P/1-2 of Mst. Naheed Akhtar on the Plantation of the appellants. Sub- Inspector Muhammad Taj (PW-14) said that he effected the recovery in the presence of Abdul Malik (PW 5) Ghulam Asghar (PW 6) and Muhammad Siddique (PW 7) who are witnesses of the recovery Memo. Exh. P/6/1-2. It is clearly discernible from their statements that the appellants had jointly led to the recovery of ear-rings. Evidence of such recovery is not admissible. If any authority were needed for this proposition we would, with respect, refer to the cases reported as Khatas Khan and another v. The State (1975 P.Cr.L.J. 172) and Abdul Ghani and three others v. The State (1976 P.Cr.L.J. 1462)."
(magnifique alias Pheeki and two others v. State (1993 P.Cr.L.J. 1017) (Supreme Appellate Court) at page 1024 it reads: "Lastly, it was canvassed that both the above said witness had not witnessed the recovery of the stolen motor bike (P.13) at the instance of Muhammad Rafique alias Pheeki and Khurshid appellants but even if they happened to witness it, it was legally untenable because it was a joint recovery and could not be used against them, moreso when no person from the locality was associated with the recovery proceedings."
(ix) Muhammad Ashraf Khan Tareen v. State (1995 P.Cr.L.J. 313) at page 329 it has been observed: "We agree with the contention of the appellant's Advocate and hold that the extra-judicial confession having been made at the time when the appellant was in the custody of the SSP is therefore inadmissible under Section 162 Cr.P.C, and Article 38 of Qanun-e-Shahadat as such the trial Judge has erred in relying on this piece of evidence."
(x) Ali and others v. Crown, (PLD 1950 Baghdadul Jadid 26) at page 29 it runs: "The next piece of evidence against the accused is that of extra-judicial confessions. It is in the evidence of the prosecution that the accused were promised to be saved if they made a confession. We are therefore of opinion that such a confession cannot be treated as not having been obtained by inducement. Besides this, there is inherent lacuna in the evidence of the prosecution........ There remains no hesitation for us to conclude that the prosecution attributes a joint confession to the appellant. Such an evidence regarding extra-judicial confession is always condemned. We refer in this connection 7 Punjab Record 1916, where the observations of Straight, Judge, appearing in 6 Allahabad 509 are reproduced :- "I have more than once pointed out that it is not a proper course, where two persons are being tried to allow a witness to state ' they said this' or 'they said that', or the prisoners then said'. It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used."
It will not be out of place to state here that above observations of Straight, J. In 6 Allahabad 509 were made incidently by the way whereas, in fact he was one of the five Judges of Full Bench, which was constituted at the instance of Oldfield and Brodhurt, JJ.., to consider whether the confessions made to Police Officers are admissible in evidence against accused under section 27 of Evidence Act, when the Full Bench held that Section 27 of Indian Evidence Act is proviso not only to Section 26 but also to section 25; and that therefore so much of information given by accused to police officer, whether amounting to a confession or not as related, distinctly to the facts thereby discovered, might be proved whereas Mehmood, J. Held that Section 27 of Indian Evidence Act is not a proviso to Section 25 but only to section 26 and that therefore, the statements in question were wholly inadmissible in evidence." In Manzoor and others v. State (PLD 1957 (W.P.) Lahore 1023) at page 1027 their Lordships observed: "A general statement by a witness that number of persons admitted having committed a crime is valueless without some indication as to which of the persons made the admission in question.
Sajjan Singh v. The Crown (ILR 6 Lah. 637) supports this view. In the absence of any such indication in the present case, we do not consider it safe to rely on the extra-judicial confession."
In Stale v. Ramai Khan alias Maloo and another (1993 SCMR 1378) (Supreme Appellate Court) at page 1380 their Lordships observed: "In the circumstances it seems improbable that they would have voluntarily confessed to a crime which was likely to lead to their conviction on a capital charge. Even otherwise too if the version of Ghulam Rasool (PW-6) is accepted as correct, it was the case of a joint confession which could not be used against either of them. The learned trial Court was therefore justified in not acting upon it."
In the Queen v. Ram Churn and others (XXIV Weekly Reporter Criminal 36) wherein on reference to the High Court for confirmation of sentence of death passed by Sessions Judge Tipperah, learned Judges at page 37 observed: "We think it right to observe upon a prevailing tendency to disregard the provisions of Section 26 of the Evidence Act, which has occurred in this case as well as in others, recourse being had, although not justified by facts, to the proviso contained in Section 27.
It can hardly have been the intention of the Legislature that when a fact is discovered in consequence of information received from one of several persons charged with an offence, and when others given like information, that the fact should be treated as discovered fr6m the information of them all.
It should be deposed that a particular fact has been discovered from the information of A.B., and this will let in, under Section 27 only so much of the information as relates distinctly to the fact thereby discovered."
In Pahlwan v. State (PLJ 1974 Cr. Cases Karachi 503) at page 504 para 6, their Lordships observed: "Even if, however, the depositions of Usman in the Committal Court were to be recorded as legally proved evidence in the Court of Sessions Usman does not say which of the for appellants told him that they had committed the murder of Ismail Extra Judicial Confessions in their nature are evidence of the weakest kind and although admissible, Courts usually insist upon knowing the precise words in which confession was expressed if that be possible. There is not only no such thing here but these are what are normally called joint extra-judicial confessions which can hardly be regarded as of any value and probably even inadmissible."
In Queen Express v. Babu Lai and another (6 Allahabad 509, F.B.) their Lordships observed: "This judgment has arisen out of reference made for the constitution of Full Bench by Oldfield and Brodhurst, JJ. The question referred to Full Bench was "whether the confessions made to police officers are admissible in evidence against them under Section 27 of Evidence Act. A reference to Full Bench was made as a case decided in Weekly Notes 1882 to the effect that such confessions are inadmissible and a doubt to correctness of the view was taken which was opposed to other rulings, when Oldfield, J. Held that "it would be easy ,fo show that, in practice, information received by a police officer has been allowed to be proved, under the provisions of Section 27, without any question being raised hitherto that the section did not contemplate such information. Only so much of the information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved, and, in the case referred, proof will be confined to the statement of Hafizullah, that the accused told him they had sold a cow and calf at Madanpur to Abdul Rahman.
Brodhurst, J. Held that: "I am clearly of opinion that section 27 of the Evidence Act governs both of the two preceding sections; and the above remarks contain, I think, a sufficient reply to the reference that has been made to us."
Mehmood, J. Held that: "That the rule laid down by the Legislature in Section 24 (read with section 28) of the Evidence Act, is a independent of the question of discovery or no discovery to which section 27 relates; that the state of things in India has induced the Legislature to frame, in section 25, an equally absolute rule in regard to confessions made to police officers, which are presumed to have been made under conditions prohibited by section 24; that the Legislature, going further in the same direction, has prohibited the admission of even such confessions as are made to third persons by the accused whilst in the custody of a police officer."
Straight, C.J: held that: -"It is with no want of respect for, or appreciation of, my brother Mahmood's judgment, from which regret to differ, that I retrain from following him at length through the long and elaborate arguments which he has so exhaustively employed................... Rut they have not convinced me that my view of sections 25, 26 and 27 of the Evidence Act as I have endeavoured to express it in the preceding remarks, is erroneous and therefore think that the general question raised by this reference should be answered in the affirmative."
Incidently in the reference made to the Full Bench Straight, J. Observed: "I have more than once pointed out that it is not a proper course, where two persons are being tried, to allow a witness to state "they said this," or "they said that," or "the prisoner then said,". It is certainly not at all likely that both the persons should speak at once, and it is the right of each of them to have the witness required to depose as nearly as possible to the exact words he individually used."
It will not be out of place to state here all the cited cases with regard to joint confessions and joint recoveries in a criminal case are concerned, reliance has been placed upon this Full Bench judgment reported in 6 Allahabad 509 but as 1 have said above that the observations above reproduced were incidently made only by Straight J., when the reference as said above was made to Full Bench.
In Gul Jamal and another v. State (NLR 1980 Criminal SC 357) at page 363 their Lordships observed: "The reasons for exclusion is not far to seek for section 27 of the , Evidence Act renders a statement admissible if it leads to the discovery of a fact. Similarly, Explanation 1 to section 8 also makes statements which accompany and explain facts other than the statements also admissible and since the line to be drawn between the admissibility of these statements under section 27 and Explanation 1 to section 8 is thin, the Courts had been zealous to guard.............. It should be clear as to who gave the information first either by words or gesture so as to faster the discovery of the incriminating article with his conduct in terms of Explanation 1 to section 8. However, a distinction has to be drawn where, without making a statement an accused leads to a place where he had discarded the articles and upon a search these were recovered, In such a case it would amount to an act which would be relevant under section 8 as a piece of conduct; and if authority is. Needed it will be found in the case of Emperor v. Nama (AIR 1941 Allahabad 145).
14. PW-9 Abdul Rasheed, I.O. In his deposition has deposed that on 6.4.1994 he received spy information that the culprit was to arrive near Ziauddin Hospital for the purpose to make telephone call for demanding ransom money, when about 1930 hours appellant/accused Muhammad Khalid appeared at Noor Medical Store and the informant pointed out appellant/accused Muhammad Khalid who used to call on telephone and demand ransom money from the complainant, consequently, appellant/accused Muhammad Khalid was arrested in presence of mashirs namely Jahangir,' Abdullah and Munawar and after arrest said appellant/accused started weeping and stated that due to temptation of money, he killed by Anas Farid with the help of appellant/accused Naseem Akhtar alias Jalees. Thereafter at the Plantation of said appellant/accused police party reached the house of appellant/co-accused Naseem Akhtar who came out on hearing the voice of appellant/accused Muhammad Khalid who was arrested at about 8 p.m. In presence of mashirs and then both appellants/accused were brought at P.S. Gulberg and were interrogated who told that they were ready to show the place where the dead-body of by Anas Farid was lying then both the appellants/accused took the police party, complainant and other PWs to a under construction house at Surjani Town and pointed out the dead-body of by Anas Farid in a room which wa& identified because of missing tooth, clothes and Chappal by the PWs when the appellants/accused disclosed that they strangulated with handkerchief the by Anas Faridand then voluntary led the police party and PWs. To a place and from bushes produced handkerchief with which the by Anas Farid was strangulated.
15. PW-6 Muhammad Jahangir Ex.9 has deposed that police arrested appellant/accused Muhammad Khalid as per memo, of arrest Ex.1O/A who was interrogated by police who confessed his guilt and started weeping and stated that he alongwith appellant/accused Naseem Akhtar he kidnapped the by Anas Farid and killed him, thereafter said appellant/accused led and pointed out the house of appellant/co-accused Naseem Akhtar who was also arrested and during interrogation started weeping and "confessed that they abducted the by Anas Farid and killed him in Surjani Town. PW-7 Fariduddin Siddiqui, father of deceased by Anas Farid has deposed that on 6.8.1994 at about 10 p.m. Police mobile consisting of SHO and his subordinates came at his house alongwith appellants/accused persons who were handcuffed and stated that they kidnapped Anas Farid and subsequently murdered him and his dead-body was lying in under construction house in Surjani Town and volunteered to produce the dead-body. Police took appel 1 ants/accused in the mobile and went to Surajni Town and on the Plantation of the appellants/accused, reached at the under constructed house where the appellants/accused pointed out the dead-body of Anas Farid in a room and was identified from his one missing tooth of upper side next to the second tooth of centre and from his clothes and chappal. PW-4 Khurram Qamar in his deposition Ex.6 has fully corroborated PW 3, PW 9, PW 7 with regard to statements of appellants/accused that why Anas Farid was kidnapped by them and then taken on the bike by appellant/accused Muhammad Khalid who was followed by Naseem Akhtar in a Rickshaw and taken to an under constructed house at Surjani Town where they strangulated with handkerchief and killed him and his dead-body and handkerchief were found/recovered at the appellants'
Plantation.
16. The said witness corroborated the memo, of arrest of appellants/accused, memo, of the place from where the by Anas Farid was kidnapped and the Memo, of place where the deceased by Anas Farid was strangulated, his dead-body was found and of handkerchief recovered at the appellants'
Plantation.
17. The perusal of the above evidence would show that in the first instance on 6.8.1994 the appellant/accused Khalid was arrested near the telephone booth, Ziauddin Hospital, who confessed before I.O. Abdul Rasheed and mashirs Jahangir that he alongwith appellant/co- accused Naseem Akhtar kidnapped Anas Farid aid murdered him. However, thereafter said Khalid appellant/accused took them to the house of appellant/co-accused Naseem Akhtar who came out and was arrested by police then both appellants/accused were taken to the police station and were interrogated where they confessed the commission of murder of said Anas Farid and volunteered to point out the place where the dead-body 6f said by was lying. Thereafter the appellants/accused in company of the police took them to the house of complainant who alongwith others were taken by the appellants/accused to under constructed house at Surjani Town from where the dead-body of deceased Anas Farid, chappal, clothes and handkerchief were recovered at the Plantation of appellants/accused. It is true that from the evidence of the above prosecution witnesses, it is not clear as to who was the first appellants during interrogation by the police, disclosed about pointing out the place where the dead-body of Anas Farid was lying. The prosecution evidence state that the appellants/accused at the same time disclosed the place where dead-body of Anas Farid was lying and they took the police party and others to that place and from where dead-body, clothes, chappal and handkerchief were found and recovered at their Plantation. The appellants have also not made any effort in the cross-examination as to who was first out of appellants to disclose about the place where the dead-body of Anas Find was lying.
Perhaps the defence wanted to leave the prosecution evidence untouched on this aspect so as to have some benefit out of it.
Article 40 of Qanoon-e-Shahadat runs: "When any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved."
Perusal of the above provision of Qanoon-e-Shahadat does not say that if information is received from more than one person, accused of an offence in the custody of police officer such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered could not be proved against the said accused persons. Mere fact that if more than one person have given such information before the discovery would not necessarily take out the said information from the purview of Article 40 of Qanoon-e-Shahadat There could be cases where such information before discovery could be ascribed to more than one accused persons which could lead to discovery to a fact connected with the commission of crime. Reference may be made to a case Naresh Chandra Das and another v. Emperor (AIR 1942 Calcutta 593) at page 603, column 1, it reads: "But the mere plurality of information received before discovery shall not necessarily take any of these informations out of the section. In a suitable case it is possible to ascribe to more than one accused the information which leads to the discovery. Assuming that in spite of the earlier information received from the other accused and the subsequent further assistance rendered by Sundar Singh, it was the information received from Sundar Singh by which the discovery can be said to have been made within the meaning of section, it still remains to be seen by how much of the information this discovery was made."
(ii) State Government of M.P. v. Chhotelal Mohanlal and another (AIR 1955 Nagpur 71) at page 74, columns 19, 20 and 21 runs: "The next question is whether the simultaneous statement can be used against either of the accused. The learned counsel for the responded contends that such a joint statement cannot be used against any of the accused. Reliance is placed on cases reported in (i) Kudaon v. Emperor (AIR 1925 Nag. 407); (ii) Emperor v. Yeshaba (AIR 1938 Bom. 463); (iii) Puttu v. Emperor (AIR 1945 Oudh 235) and Poskaki v. State (AIR 1953 All 526).
It is not possible to accept this contention of the counsel for the respondents, we are of the view that the joint or simultaneous statement of the accused persons are not inadmissible in evidence.
In our opinion the scheme of Section 27, Evidence Act, is to put it in the words of their Lordships of the Privy Council in a case reported in Pulukuri Kottaya v. Emperor (AIR 1947 PC 67).
"The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved. The section seems to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true, and accordingly can be safely allowed to be given in evidence."
That is to say, the information received from the first source is admissible in evidence if it leads to a discovery consequent upon that information against that, source when by the fact discovered some guarantee is afforded that the information supplied by the accused is true. Once that information is in the possession of a Police Officer and the fact is discovered by police thereby any subsequent similar information received by the police officer cannot be said to be such information as leading to the discovery of the same fact. There cannot be re-discovery of the same fact.
The first source in our view need not be confined to anyone person. We are not in agreement with the view that the words " a person" in Section 27, Evidence Act, in any way excludes admission of information from more than one person simultaneously received provided it fulfils the requirements of Section 27. Section 13(2), General Clauses Act, provides that words in the singular shall include the plural and ' vice versa' provided there is nothing repugnant in the subject or context, In our opinion there is nothing repugnant in die provisions of Section 27 for acceptance of statements jointly made by more than one person provided that facts discovered in consequence thereof afforded some guarantee about truthfulness of their statements. It will depend m the facts of each case. "
At page 75, column 1, it has further been held: "It, therefore, appears that simultaneous statements are not 'per se inadmissible' in evidence and are liable to be considered if the discovery made in consequence thereof affords discovery made in consequence thereof affords a guarantee about the truth of the statements."
I
(iii) Abdul Kader and others v. Emperor (AIR 1946 Calcutta 452) at page 456 it runs: "If, of course, the prosecution are in a position to establish that the statements or the action which led to the discovery were actually made, or took place, simultaneously we do not think that evidence in regard to the simultaneous statements or the simultaneous action would be entirely shut out by the provisions of Section 27, Evidence Act, but there must be clear and satisfying evidence on this point such as will enable the Court to decide and to give a specified direction to the jury whether the evidence is admissible against both of the accused or against either and if so against which."
Admittedly the incident of this case is unwitnessed crime. However, the prosecution, has brought circumstantial evidence to substantiate the charge against the appellants out of which, the most important piece of evidence in the instant case is retracted extra-judicial confessional statements of appellants and retracted judicial confessions of the appellants further strengthened by the recovery evidence in respect of pointing of the place from where the dead-body of Anas Farid and handkerchief, clothes and Chappal were recovered. The place of under construction house in Surjani Town from where the dead-body of Anas Farid, his clothes and chappal and handkerchief were recovered could not be said to be in the knowledge of any other person than appellants/accused in this case. The prosecution evidence clearly show that both appellants/accused simultaneously agreed to show the place where the by Anas Farid deceased was strangulated and where the dead-body was lying. It will not be out of place to state here that the appellants/accused being a near relative of the deceased and of the PWs would not falsely implicate them in this heinous crime of murder of a minor by. It will also be worth consideration that the relations viz. The complainant and other PWs in the first instance did not name the appellants/accused in the commission of crime even after the receipt of telephone call demanding ransom money and it was only after the arrest of the appellants/accused and after they confessed about the commission of crime, pointed out the place from where the above recoveries were made, the appellants/accused were said to be persons accused of the said crime.
Had there been any enmity of the complainant and the other PWs, they could have conveniently named them at once without waiting for the recoveries as said above so as to strengthen their case against the appellants. All these facts together convince us that the appellants/accused made simultaneous statements with regard to fact of pointing out of place where the offence was committed and from where the dead-body, clothes, chappal and handkerchief were found and recovered. In fact, Article 40 of Qanoon- e-Shahadat states that if any fact is deposed to as discovered in consequence of which information from the person accused of any offence so much of such information whether it amounts to a confession as relates distinctly to the fact thereby discovered, may be proved, therefore, in view of information viz. The confession with regard to commission of crime and in consequence to the said fact, the accused/appellants took the police and PWs. To a place from where dead-body, clothes, chappal .And handkerchief in consequence thereof were found and secured, %ould be admissible in evidence against the appellants/accused and the prosecution has Successfully proved that simultaneous statements were made by the appellants/accused which led them to the recoveries of dead-body, clothes and handkerchief and chappal which confirmed that the confessional statements made by the appellants/accused before the Police and other witnesses so also before the Magistrate were true.
19. So far cases cited by the learned counsel for appellants reproduced above, they have different facts and the very foundation of those cases was based on VI Allahabad 509 wherein only incidentally the learned Straight, Judge made said observations without basing his arguments on any provisions of law. One could not rule out the possibility of more than one person speaking simultaneously of the same matter in consequence of which some incriminating article/substance/body is recovered connecting and being relevant the commission of crime therefore simultaneous information by more than one person could not be taken out of the purview of Article 40 of Qanoon-e-Shahadat. We are of the opinion that in suitable cases where one finds truth in the simultaneous information, the same cannot be thrown out of the purview of Article 40 of Qanoon-e-Shahadat. In the instant case, we find truth in the simultaneous information given by the appellants/accused in consequence of which said incriminating recoveries were made which confirmed the information simultaneously given by the appellants/accused and the said statements have also been proved through un-biased, reliable and satisfactory evidence of PWs Jahangir, Sohail Raees, Fariduddin and I.O. Abdul Rasheed who have no enmity with the appellants/accused. So much so that the motor bike which was used in the commission of crime was also secured from the possession of co-accused/appellants Naseem Akhtar from his house in presence of mashirs which fact is also corroborated by PW Muhammad Anwar who deposed that accused Naseem Akhtar came to his Press and took his motor bike for the supply of goods.
20. Article 40 of Qanoon-e-Shahadat also permits the admission of even confessional statement is it leads to a discovery of fact connecting the accused with the commission of crime. In the circumstances, we do not find substance in the arguments of learned counsel for appellants. The said statements leading to the discovery would also be relevant fact under Article 21 of Qanoon-e- Shahadat.
25. Even if we assume that it was appellant/accused Muhammad Khalid who first made statement about the kidnapping of deceased by Anas Farid and subsequently murdering him in under constructed house in Surjani Town from where at the Plantation of appellants/accused dead-body of deceased Anas Farid, his clothes, chappal and handkerchief were recovered, the co- accused/appellant Naseem Akhtar having common participated aided in the commission of crime having common intention with the appellant/accused would be equally liable and responsible for the commission of crime in view of evidence on record.
26. We do not find any merit in this appeal hence the same is dismissed. So far the sentence imposed by the trial Court, we do not want to interfere with the same considering that a minor innocent by of nine years was brutally murdered by the appellants/accused who accompanied them having confidence in them being their near relative so also other relations of the complainant did not suspect the appellants in the commission of crime but they betrayed the confidence of the complainant and the relations. In the circumstances, appeal Js dismissed and sentence passed by the trial Court is confirmed.