Z. A. CHANNA , J.-The two appellants, Muhammad Nasim Agha, who is stated to be an engineering student, and Soofi Sher, who is said to be an Engineer by profession, have been convicted by the learned Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, vide judgment delivered by the learned Special Court on the 2nd of July, 1975. Appellant Mohammad Nasim Agha has been convicted under section 436, P. P. C. Read with rule 43 of the Defence of Pakistan Rules, as also under sections 3 and 4 of the Explosive Substances Act, 1908, while appellant Soofi Sher has been convicted under section 4 read with section 6 of the said Act.
For the offence under section 436, P. P. C. Appellant Muhammad Nasim Agha has been sentenced to R. I. For 10 years and a fine of Rs, 10,000 in default to suffer R. I. For one year. For the offence nder section 43 of the Defence of Pakistan Rules he has been awarded 3 years R. I. For the offences under sections 3 and 4 of the Explosive Substances Act, he has been sentenced to R. I. For seven years and four years respectively. All the substantive sentences in respect of this appellant are to run concurrently. So far as the appellant Sher Mohammad alias Soofi Sher is concerned, be has been awarded 4 years' R. I. For the offence under section 3 read with section 6 of the Explosive Substances Act.
2. The two appellants, as already stated, were tried by the learned Special Court under the provisions of the Suppression of Terrorist Activities (Special Courts) Act, 1975, in respect of a bomb blast which occurred in the G. P.
0. Karachi, on the 31st of October. 1974 at about 5 minutes after 12-00 midnight. In that explosion, which is stated to have been caused by means of a plastic bomb placed in the letter box which was fixed in the outer wall of the Mail Agency Hall of the G. P.
0., considerable damage was done to the G. P.
0. Premises, in that, the letter box was completely twisted and destroyed, the wall in which the letter box was fixed was also damaged, there was a depression under the letter box, the ceiling of the room was cracked, the shed In front of the sorting hall was destroyed and the windows and panes of the mail agency hall were damaged. Certain other damage was also caused and in all 11 persons sustained numerous injuries on their persons in consequence of the explosion.
3. In consequence of the explosion a fire occurred in the premises of the G. P. O. Which caused further damage. The first police officer who came to know of the explosion was Assistant Sub- Inspector Jamil Akhtar, who was on duty as Station House Officer at Arambagh Police Station. He made a note in the Station Diary about the explosion and transmitted a copy of the same to S. H.
0. Pervalz Ahmad as also to the Deputy Superintendent of Police, Altaf Ali. The police party reached the scene of offence within a few minutes of the blast but in the meanwhile the 11 persons who had sustained injuries in the blast had been removed to the Civil Hospital for examination and treatment. The fire brigade engines were also summoned and they were able to extinguish the fire.
The Platoon Commander of the Bomb Disposal Squad, Patch Muhammad, and the fixplosives Inspector of Karachi, Matiur Rehman, were also summoned to examine the situation and to give their opinion. Their view was that the explosion had been caused by a plastics bomb. And most probably the bomb was planted in the post-box fixed in the wall of the mail agency hall.
4. No trace of the culprits responsible for the bomb outrage could be found out till the arrest of appellant Sher Muhammad alias Soofi Sher. He was arrested on 9-1.1975, by Inspector Mohammad Sher if of the Crimes Branch, Quetta, on 9.1-1975, in connection with Case No, 77/74 of Civil Lines Police Station, Quetta. This appellant was produced before Mr. Muhammad Zanian Waairzadah, Sub-Divisional Magistrate, Quetta, before whom he made a detailed confession, running into about 50 pages, on 20-1-1975. In that confession he mentionei that he had given a plastic bomb to appellant Agba Muhammad Nasim for planting the same in a prominent building at Karachi. In the meanwhile, on 14-1-1975 D. S. P. Altaf Ali arrested appellant Muhammad Nasim Agha from the Jinnah Courts Hostel, on receipt of secret information. On 17-1-1975, this appellant is stated to have shown to the police the place where the bomb had been placed by him and which had exploded in the G. P.
0. In consequence of the information said to have been given to him by appellant Muhammad Nasim Agha, D. S. P. Alta' All proceeded to Quetta on 18-1.1975, from where he returned to Karachi on 20-1-1975. Later, he obtained a copy of the confession of appellant Sher Mohammad.
5. On 25.1-1975, appellant Muhammad Nasim Agha was first produced before Mr. Abdul Rahlm Jan, Sub-Divisional Magistrate, Civil Lines, Karachi, who recorded his judicial confession. Later, the same day, this appellant was produced before Mr. Abdul Kadir Abro, S. D. M., Harbour Section, Karachi, who held an identification test where he is alleged to have been picked out by P. W. Zulfikar Hussain, an employee of the G. P. 0 , according to whom, this appellant was seen by him hurriedly coming from the direction of the mail sorting office, G. P. O, about 15 minutes before the explosion, and had actually bumbed into him while crossing him, in consequence of which the witness had rebuked this appellant and asked him to keep his eyes open.
6. On conclusion of the investigation, and after obtaining sanction from the Home Secretary, Government of Sind for the prosecution of the appellants, the two appellants were ohallaned before the Special Court. One Abdul Shakoor was shown in the challan as absconder, as in spite of the best efforts of the police he could not be traced.
7. Both the appellants, in their statements in Court, denied having any hand in the blast which is the subject-matter of this case. So far as appellant Muhammad Nasim Agha is concerned he denied that he had made any judicial confession before a Magistrate or that any test in respect of him been oonduated and he had been picked out by P. W. Zulfikar Hussain. His further statement is to the following effect t- "I was in Quetta and started from .There for Karachi on 30-10-1974. I reached Karachi the next day.
On 14-1-1975 D. S. P. Altaf Ali in plain clothes and some other Police Officers came to my Room No, 28 in Jinnah Courts and they told me that they were checking the hostel because it was occupied by unauthorised persons. They then went away and I was called to the office of the hostel. When I reached the office, Iqbal Rizvi, Superintendent of Police, told me that I was wanted by the Principal of the College. From there I alongwith Sir Iqbal and Pervez, who are my college fellows came with the Police Officers, thinking that we were being taken to our Principal. At the gate of the hostel, outside, there was a car. The Police Officers told me to sit in the car to go to meet the Principal. I sat in the car. My companions were not allowed to come in the car and were asked to come on foot. I was thereafter brought to Mara Bash Police Station, and I was told that I was under arrest. I was taken to Court for remand on 15-1-1975. While I was in police custody I was repeatedly told that I had attended some meetings. Police brought a plain piece of paper and asked mo to sign the same. They stated that they had to compare my signatures with other signatures of those persons who had attended the meeting. I was helpless and had to sign that paper. I was produced again before a Magistrate on 28-1-1975 and I was produced in this Court on 29-1-1975. I had gone to my native place on 14-10-1974 to celebrate Eid."
8. So far as appellant Soofi Sher is concerned, while denying the prosecution allegations, he has stated that he knows nothing whatsoever about the explosion at the G. P. O., and has denied having delivered any plastic bomb to co-appellant Muhammad Nasty Agha. He has also denied having made a confession. In regard to his being implicated by co-accused Mohammad Nasim Agha in the latter's confession, he has stated that the said portion of the confession is false, and that he has been wrongly implicated by the witnesses who have been set up by the police. In his defence he examined 3 witnesses, namely, Sardar, Malik Amanullah and Mohammad Sharif. The first two witnesses, who were incarcerated alongwith appellant Soofi Sher at Quetta, have spoken of torture and maltreatment of this appellant by police. So far as D. W.
Mohammad Sharif is concerned, who is an Inspector of police, he has denied that he had prepared a written statement of this appellant which had simply been signed by Magistrate Wazirzada Mohammad Zeman. On the contrary, this witness has stated that the confession was made by this appellant voluntarily and without any inducement, threat or promise.
9. The Special Court, has convicted appellant Mohammad Nasim.Agha on the basis of the following 3 pieces of evidence, upon which he placed reliance :- (a)Judicial confession of this appellant recorded by Magistrate Abdul Rahim Jan on 25-1-1975 ; (b)judicial confession of co-accused Soofi Sher recorded by Magistrate Wasirzada Muhammad Zaman on 20-1-1975 ; and
(c) the evidence of P. W. Zulfqgar Hussain, supported by the latter's identification of this appellant in the test held by Mr. Abdul Kadir Abro, S. D. M,, Harbour.
10. We have very carefully considered the confession of accused Muhammad Nasim Agha, but we find that it suffers from a number of infirmities, which arouse reasonable doubts in our mind whether the confession was voluntary or even was true. As already stated, this appellant was arrested on 9-1-1975, while his confession was recorded on 20.1-1975, te.11 days later. The question, therefore, that has to be considered is whether a confession which has been recorded after such delay can be considered to be voluntary. The learned Special Court was influenced by the tact that for 3 days, that is between 18-1-1975 and 20.1-1915, the investigating officer, D. S. P. Altaf Ali, was at Quetta and it was within 4 days of his return to Karachi that he produced this appellant for confession before a learned Magistrate at Karachi. With very great respect to the learned Special Court, we do not consider this explanation for the delay to be quite satisfactory or to be sufficient for removing the doubts that we entertain regarding the voluntariness of the confession. We find that in the instant case there was at least 3 police officers who were investigating the case, namely, A. S. J., Jamil Akhtar, S. H.
0. Parves Ahmed and D. S. P. Altaf Ali Even if D. S. P. Altar Ali was out of station, nothing prevented the remaining two police officers or even another police o cer from producing the accused before a Magistrate for confession, if in fact this appellant was ready and willing to make the same. D. S. P.
Altaf Ali has also not explained why, upon his return from Quetta, it took him 4 days to produce this appellant for confession before a Magistrate. It is our experience that wherever 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 be 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 Sharifuddln Plriada v. Sohbat Khan (1). In that case the contention that the appellant bad 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 tutored. Remaining of accused persons for some time in the police custody does not affect their judicial confessions. Mr. Asizuddin, A. C. M. Who recorded the statements has clearly stated in his statement that opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the proforwa which was available for recording the judicial confessions. This shows that the confessions were made voluntarily."
11. 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 which was made on the wry night of the incident to two persons, whose testimony was relied upon. The Courts, on the other hand, generally look 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 (2), 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 Sayed Anwar v.
State (3) which was a case under sections 3, 4 and 6 of the Explosive Substances 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 Map v. State (4), where a Division Bench of this Court held that the delay of more than 48 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 A the confession of appellant Muhammad Nasim Agha, and the explanation by D. S. P. Altaf All for the delay does not appear to us to be convincing or, to be worth of much credit.
12. Before concluding the discussion on this point we may also refer to two other authorities wherein the delay in the recording of the confession was condoned and the confession was nevertheless accepted. The first of these cases is Mohammad Karim v. The State (5). In that case it was observed {{FOOT NOTE}}
(1) PLD 1972 SC 363 (2) PLD 1973 Lah. 714
(3) PLD 1977 Pesh. 64 (4) PLD 1977 Kar. 760
(5) PLD 1976 Pesh. 135 {{FOOT NOTE}} that "the mere fact that the accused remained in police custody for 5 days before he made the confession, c3uld not raise a presumption that the confession had been made by inducement, threat or promises". This decision was based on the decision of their Lordships of the Supreme Court in Sped Sharifuddin Pirzada's rase. We have already referred to that case and have shown that the circumstances of that case were totally different from the facts of the instant case. The second case is Nasrullah Khan v. State (1). This also was a case tried under the Supression of Terrorists Activities (Special Courts) Ordinance, 1974, and the accused was convicted under sections 4 and 5 of the Explosive Substances Act. In that case a confession of the accused recorded after 13 days of his arrest was held admissible in evidence and was relied upon to sustain his conviction. Reliance for the decision in that case was again placed on S'ed Sharifuddin Plrzada's case, wherein we have shown that the circumstances of the case were entirely different from those in the instant case.
13. The delay in the recording of the confession is not the only fact which has disturbed us in the instant case. The mode in which the confession was recorded also raises considerable doubt.
14. The Magistrate, who recorded the confession, has admitted tha he bad not recorded in the confession that he had informed the appellant that he was a Magistrate, that he had not told the appellant that he would no send him to police custody and that he had also not asked any questioi from the appellant as to why he was making the confession. Furthermore the learned Magistrate has also not recorded that the appellant signed th confession after himself reading the same. The mode in which the learns Magistrate had recorded the confession and his omission to point out certain facts to the appellant before recording the confession would appear t militate against the instructions contained in Part C of Chapter VI of th Criminal Circulars of the Federal Capital and Sind Courts Criminal Circulars. Rule 8 of the said Rules requires that the Magistrate should invariably satisf himself that the confession is voluntary, and requires him to put certai questions to the accused for this purpose. The said rule reads as follows :- "8.-(1) The Magistrate should invariably satisfy himself that th confession is voluntary, for which purpose the accused should b questioned as follows : -
(a) Whether the accused had been given any inducement, threa or promise by the police or anybody else to make a confession,
(h) Whether the accused understands that after making a statement whether confessional or not, before the Magistrate, he will not b remanded to police custody but will be sent to the judicial lock- up ?
(2)If the accused is disposed to make a confession, the Magistrat should question him in detail about all the circumstances of the cas for the more detailed statement the greater are the chances o estimating its true value. When questioning the accused, the Magistrat should not cross-examine him or seek to entrap him, but should permi the accused to give this version of the case.
(3)The Magistrate should whenever feasible examine the body of th accused provided the accused consents to such examination. If ther appears grounds for suspecting violence, he should have the accuse' examined, by a Medical Officer, if possible, (4)All questions put to the accused must be recorded in writing and hi answers thereto must also be recorded in his own words.
(5) The Magistrate should add to the certificate required by section 164 of the Criminal Procedure Cede, a statement in his own hand, of grounds on which he believes that the confession is voluntary, the precaution which he took to remove the accused from the influence of the police and the time, if any, given to him for reflection.
9. Accused who declines to make a statement before the Magistrate, or an accused who makes a statement, whether confessional or not, should not be remanded to police custody under any circumstances.
10. After a prisoner has made a confession, he should be committed to Jail, and the Magistrate should note on the warrant for the information of the Superintendent of the Jail concerned, that the prisoner has made a confession."
15. Admittedly, the learned Magistrate did not attempt to find out as to why the appellant was making the confession. He also did not examine the body of the appellant to find out whether there were any marks of maltreatment on his person. Furthermore, admittedly, he did not inform the appellant that he would not be sent back to police custody, whether he made the confession or not. As a matter of feet the appellant continued to be in custody till 29-1-1975, when he was produced in police custody before the learned Special Court. No reasons have been shown as to why the appellant was remanded to custody after his confession was recorded. It is true that an identification test in respect of this appellant had to be held through P. W. Zulfikar Itussain, but this could easily have been held during the 11 days time that the appellant was in custody of the police before the recording of his confession, For this sole purpose, remanding the appellant to police custody appears to us to be unwarranted. In any case, this could have induced a fear in the mind of the appellant that if he does not make the confession he may be maltreated by the police. e.
There remains, so far as the appellant Mohammad Nasim Agha is concerned, the evidence of P. W, Zulfikar Hussain. All that this witness has stated is that on the night of the incident, he had gone to the G. P.
0. At 11-30 p.m., and while he was nearing the G. P. O., the appellant had dashed against him and consequently be had warned him to look out and rebuked him for his unseemly hurry. The witness has further stated that the appellant appeared to be confused.
17. Mr. Azizullah Shaikh, the learned counsel for the appellants, has assailed the testimony of this witness on several grounds. His first ground of attack was that the witness was a chance witness, as admittedly he was not on duty on the night of the incident and was in fact on leave. The learned counsel submitted that the explanation of the witness that he had gone to see some of his colleagues cannot be accepted, firstly, because it is unreasonable to expect that at the late hour of 11-30 p.m. He would go to see his colleagues at the G. P. O., which was 3 to 4 miles from his residence, secondly, the difficulty the witness was likely to experience in getting conveyance for going to and returning from the G. P.
0., at such a late hour of the night, and finally, even if the evidence on the point of his having gone to the G. P. O., on the night of the incident be accepted, the reasonable possibility of his being mistaken as to the identity of the person who had dashed against him cannot be ruled out. We find substance in these submissions..
18. The witness has admitted that though he is a sorter in the G. P.
0., he was on leave from 27th to 31st October, 1974. No pressing business impelled him to go to the
0. P.
0. At such a late hour on the night of the incident, specially as according to his own admission this was the first occasion during his leave that he happened to go to the G. P.
0.
19. The learned counsel's next ground of attack was that it was unreasonable to expect that the witness, as stated by him would go merely for a chit-chat to the 0. P.
0. At 11-30 p.m. And remain there till 1-00 a.m., specially as his own house was 3 to 4 miles away from the scene of offence and it is notorious that at such a late hour conveyance is not easily found. There is no evidence that the G. P.
0. Provides conveyance for its staff which works upto late hours, and even if it does provide such conveyance, whether the witness, who was on leave, was entitled to use such conveyance.
20. The learned counsel finally submitted that since the witness had only a momentary glimpse of the previously known person who is alleged to have dashed against him, and there was admittedly no light at that place, his evidence as to the identity of that person cannot be relied upon, specially as the witness had given no description of such person to the police. The learned counsel also pointed out OM no reliance can be placed on the identification test in view of the fact that it was held on 20-1-1975, almost 3 months after the incident. In support o' his contention in Dil Muhammad v. Crown (1) Qabil Shah v. State (2) ; Gul Barg v. State (3) and Gulab v. State (4). In Dil Muhammad's case, their Lordships of the Federal Court approved the view of the High Court that the results of the identification parade should be discounted, as firstly, the identification test was held after a number of days, and secondly, identification in the darkness, with only lantern and few torches, was doubtful and unreliable, and it was not possible under the circumstances to memorise faces of so many dacoits. In Qabil Shah's case, identification after a month and 7 days of persons having a momentary glimpse of culprits was disbelieved. In Gul Baig's case, where the appellant was prosecuted for murder, a Division Bench of this Court held that identification test conducted after 20 days of the occurrence, based on memory and partial glimpse of faces of the assailants in torch light, was extremely difficult to accept with reliance. In Gulab's case which also wa3 a murder case, identification parade held after 14 days after arrest of the accused was discarded, specially, as some witnesses had admitted that police bad shown the accused to them before identification.
21. A number of English cases may be cited where identification in broad-day light had been defective and innocent people had been convicted of various crimes because of mistaken identity.
The most notorious case is of Adolf Beck. He was convicted of committing number of petty frauds upon women in London, whom he was alleged to have induced to reside with him as his mistresses. During his first trial, he was convicted to 14 years R. I. On his release in 1895, similar frauds on women began again. At his second trial, during an identification parade, no fewer than 12 women, who had been defrauded, picked him out. The identification evidence was relied upon and resulted in his conviction. After Beck had undergone his second period of conviction, he was arrested for a third time on the basis of his being picked out in an identification parade by 4 women. Who stated that he was the person who had committed fraud upon them. While he was in {{FOOT NOTE}}
(1) PLD 1956 17 C 402 (2) PLD 1960 Kar. 697
(3) PLD 1964 Kar. 275 (4) 1974 P Cr. L J 74 {{FOOT NOTE}} custody, awaiting sentence during this third trial, one Smith was arrested, and it was found that he was the person responsible for defrauding the women and Beck bad been the victim of mistaken identity. He was accordingly given a free pardon and a grant of s. 5,000 as compensation. In his treatise "The Proof of Guilt", by Glanville Williams (Third Edition) at pages 106 to 124, the learned Author has given a number of instances where innocent persons had been convicted on the basis of mistaken identity. A page 120 of his book, the learned author writes : "in the matter of identification there is, unfortunately, no safety in numbers".
22. In the instant case, the identification was by a single person who had but a momentary glimpse of the person concerned. Accordingly to the witness, he saw the culprit by means of street light.
However, the mashirnama of the scene of offence and the other evidence on record shows that there C was no light at the scene of offence. In the circumstances, we are inclined to the view that no reliance whatsoever can be placed on his evidence. His evidence, thus, does not, in our respectful view, corroborate the confession of appellant Muhammad Nasim Agha.
23. So far as the third piece of evidence against appellant Muhammad Nasim Agha is concerned, it is the confession of co-appellant Soofi Sher. This confession again was recorded after a period of 11 days. It is, therefore, subject to the same criticism which we have levelled in respect of the confession of appellant Muhammad Nasim Agha. Furthermore, we find that the learned Magistrate had given only half an hour to this appellant for reflection. We do not think that this was an adequate period for erasing from the mind of this appellant any impression of fear, inducement or threat, which might have emanated from the police or any other person in authority during the period of 11 days that he was in custody. No doubt, the confession is a lengthy one, and according to the learned Magistrate, Waziraada Muhammad Zeman, it took him 5 hours to record the confession, but the mere fact that it was a detailed confession, would not, in our view, mean that the confession, so far as the present case is concerned, was voluntary, specially as there is no circumstance which corroborates the confession. No doubt, if a confession is voluntary and true, it can be made the basis of conviction, but the safe rule is that a conviction, if it is to be based upon a confession, the confession should be corroborated. As already indicated, there is no corroboration, so kr as appellant Soofi Sher is concerned, in regard to bis judicial confession.
24. We have given very careful consideration to the entire evidence in the case, and have been assisted by the able arguments of Mr. Aaizullah Shaikh and Mr. Usman Ghani Rashid, Assistant Advocate-General, and have reached the conclusion that the evidence in the case is not such as to inspire confidence. We would, accordingly, set aside the convictions and sentences of both the appellants and accept their appeals.