1985 PLP 604 (MLD)

It is clear from the narration of the first part of confessional statements of the accused that they are inconsistent and there are discrepancies which are very clear and conspicuous that all these accused persons do not see eye to eye so far the first part of the story is concerned. Now we take up the second part of the story. Tauqir stated in his confessional statement Exh.58 that after he, Zafar and Ayoob sat in the car, on the way they bought and gave chocolates to the baby and took her towards Gulshan-e-Iqbal. At 6-30 p.m. they reached at house No.564/2 and while coming out of the car baby tried to raise cries and Zafar put his hand on her mouth and she was brought in the house where her month was tied with handkerchief. Nayer consoled her and Ishtiaq went away with the car. Baby slept at 9 p.m. Nayer also went away. Tauqir further stated that he, Ayoob and Zafar stayed there. On the following day Zafar and Nayer came there and wrote a letter on a rough copy. Letter was written by Zafar and then copied out by Ayoob on a separate paper. The same was handed over to Ishtiaq for delivery to Aziz Baig father of Taranum. Rupees one lac was demanded in the letter to be delivered at Kala Board. Since Aziz Baig informed police, Nayer alerted others to be careful and not to go for collection of money. On being disappointed Nayer suggested to have intercourse with the girl and then kill her. In this context Nayer stated in his confession Exh.59 that at the shop of Hakeem Sahib, Ayoob, Tauqir and Zafar also sat in the car and they all drove the car on various roads and finally came to Gulshan-e-Iqbal where Tauqir had arranged for the house, On tile way they provided chocolates to Taranum. When they took out Taranum from the car she was surprised to see the strange place and tried to raise cries but Zafar put his hand on tier mouth to keep her silent and then she was taken inside the house, where doors and windows of the house were closed. Taranum started weeping, therefore, her mouth was tied with handkerchief. Nayer further stated that he and Ishtiaq went away. Ayoob, Tauqir and Zafar stayed back in the house. Nayer further stated that on the following day after performing his duty ho came back to the said house and found Ayoob, Zafar and Tauqir sitting there. Taranum was weeping. They consulted each other to write a letter to the father of the girl and to demand money. Zafar wrote letter on rough copy and Ayoob made a fair copy of it. Letter was handed over to Ishtiaq for delivery to Aziz Baig. In the letter demand was made for payment of Rs.1,00,

000. After sending the letter Zafar made a telephone call and asked Aziz Baig to come with Rs.1,00,000 to Kala Board. Nayer further stated in his confession that his uncle Aziz Baig contacted with the police so he advised to his friends not to go Kale Board. On this all became frustrated and it was realised that if Taranum remained alive and sent back she would expose all. It was therefore, decided to kill her and before doing that it was agreed to rape her. On this aspect Ishtiaq in his confession Exh.60 stated that after Tauqir, Zafar and Ayoob sat in the car, baby asked him as to where he was taking her and on this Nayer replied that she was being taken for a nice place. On this she started weeping and then Nayer Mirza put his handkerchief in her mouth. Ishtiaq further stated that they went to Gulshan-e-Iqbal where door of the house was opened by Tauqir and they entered with baby. Other four accused persons stayed there while he left with the car and abandoned it in the jungle of New Karachi. On the following day he again went to the said house at 4 p.m.and . found Zafar, Tauqir, Ayoob and Nayer sitting there. Nayer told him that letter of demand of Rs.1,00,000 would be given to him for delivery to Aziz Baig.tle replied that he would go to the house of Aziz Baig with Haji. Mushtaq and would deliver the letter. On 7-2-1978 Ishtiaq drove Haji Mushtaq to the house of Aziz Baig and waited there when Tauqir came on cycle, handed over letter to him which he delivered inside the house. Ishtiaq further stated in his confession that on 8-2-1978 as per routine he again went to the said house and found Tauqir, Zafar, Nayer and Ayoob present there.He and others chalked out a programme for raping her.tshtiaq asked Nayer about money but Nayer replied that police was searching them. It is obvious that version of Ishtiaq is different and according to him baby asked him as to where she was being taken. Others did not say so. Secondly it was Nayer who put handkerchief on the mouth of baby when she started weeping on the way. Others have said that Zafar closed the mouth of baby. Ishtiaq also does not talk about chocolates purchased and offered to the baby on the way. Ishtiaq claims that he left others at the house and himself alone took the car back while Nayer has stated that he and Ishliaq went back together. Others have nut etuled about Tautlir taking letter on cycle to the house of Aziz Baig to be handed over to Ishtiaq for delivery to Aziz Baig. Tauqir himself has not stated so in his confession Exh.58. Even Nayer only stated that letter was handed over to Ishtiaq for delivery to Aziz Baig. He did not say that it was handed over to Ishtiaq by Tauqir who came on cycle to the house of Aziz Baig. Ayoob stated in his confession Exh.61 that about 5 or 5-30 p.m. Ishtiaq and Nayer brought the girl in the car and they also sat in the car. They-took baby to Block No.2 Azizabad, Federal 'B' Area, Karachi. Tauqir opened the door and took the girl inside the house. Ishtiaq went back alongwith car. At night he and Nayer also went away. Tauqir and Zafar stayed back in the house to look after and keep an eye on the girl. On the following day he again visited the said house and then went back. Nayer Mirza used to come at 4 or 5 p.m. and used to go back at night. Nayer used to convey the news of the house of Aziz Baig. Ayoob further stated in his confession that on 6-2-1978 when he reached there, Nayer showed him a letter with a demand of Rs.1,00,000 from Aziz Baig and asked him to copy out as his handwriting was good. Zafar gave him a ball pen and note book. Ayoob further stated that. he copied the contents of the letter. Letter was sent to Aziz Baig through driver Ishtiaq. Again on 8-2-1978 when he reached there Nayer told him that there was no hope for money as police was searching. All five of them present there had settled to commit rape with Taranum. It would be pertinent to mention that Ayoob does not speak about crying of the girl. He did not state about anybody tying her mouth with handkerchief. He also did not say that Tauqir went on cycle to hand over letter to Ishtiaq at the residence of Aziz Baig. Zafar stated in his confession Exh.62 that baby was sitting in the car on the rear seat and Nayer Mirza was sitting beside her. He, Tauqir and Ayoob also sat in the car and proceeded ,towards Gulshan-e-Iqbal. At 6-30 p.m. they reached the house of Tauqir. While coming out of the car Taranum raised cries and he put his hand on her mouth to shut her mouth. They took her inside the house and tied her mouth with handkerchief. Ishtiaq went away and Nayer Mirza after consoling baby also went away. He, Ayoob and Tauqir remained in the house. On the following day he and Nayer prepared a letter which was roughly written and then a fair copy was made by Ayoob. This letter was sent to Taranum's father through Ishtiaq. In this letter Aziz Baig was asked to pay Rs.1,00,000 for safe return of his daughter. Zafar further stated in his confession that he. made a telephone call to Aziz Baig from public telephone at Super Highway and asked him to bring money at Kaia Board. Later Nayer informed that Aziz Baig has informed the police and the whole idea should be given up. They were all disappointed and decided to kill the girl after raping her. Third part of the prosecution case is raping and killing of Taranum. On this point Tauqir stated in his confession that on 8-2-1978 at 6 or 7 p.m. first he had intercoursed with baby and thereafter Zafar and Nayer and lastly Ishtiaq. He changed his statement and stated that first Ishtiaq and thereafter Ayoob had intercourse with the baby. Due to that baby became semi-unconscious and was bleeding heavily.Nayer arranged for some ;unitary towel to stop the blood and at 9 p.m. he went away to his house. On 9-2-1978 plan was made for burial of body after killing the baby. Tauqir further stated in his confession that he went to Delux Paint Mahal and purchased one gunny bag and Lachhi rope and at about 8 or 9 p.m. they all made baby stand beside the wall and he, Zafar, Ayoob and Ishtiaq jointly caught hold of her and pressed her neck with handkerchief with such force that her eyes came out. After releasing the handkerchief, it was noticed that she was still alive and thereafter Nayer Mirza tied her neck with a rope and pulled it and then tied her hands and legs and she was put to in a gunny bag. Nayer checked everything belonging to her including her shoes and put them into gunny bag. Ishtiaq brought a Suzuki pick-up which was covered and they all put gunny bag into Suzuki and came to Yousuf Plaza and threw the gunnybag containing dead body near a wall of Yateem Khana. From there they went to water pump and got down from Suzuki and went to their houses. Ishtiaq went away in the Suzuki. On 23-2-1978 police arrested him at 2.30 p.m. and he pointed out shop from where he purchased gunny bag and rope. He also pointed out his house from where police recovered his bed and a small pencil belonging to Taranum which were taken in custody. , Nayer Mirza stated in his confession Exh.59 that first Tauqir then Zafar then he then Ayoob and lastly Ishtiaq raped Taranum and she became semi-unconscious. She was bleeding heavily and he did his best to stop blood by wrapping cloth. On the following day they all decided to finish Taranum and throw away her dead body. Tauqir brought a gunny bag and rope. At 8 or 9 p.m. they made Taranum stand by the wall. Ayoob, Zafar, Tauqir and Ishtiaq caught hold of her arms and legs and he (Nayer) put his handkerchief around her neck and tied the same whereupon her eyes came out but after releasing the handkerchief it was felt that she was still alive, therefore he put rope around her neck and tightened it. Thereafter, they tied her legs and hands and put the body in the gunny bag. He checked all the belongings of Taranum and put them in the gunny bag . Ishtiaq brought a covered Suzuki Van and they put the gunny bag in it and came to Yousuf plaza where near Yateem Khana they threw away gunny bag containing dead body. He was arrested on 23-1-1978 from the house of his uncle Aziz Baig. On this point Ishtiaq said in his confession Exh.60 that they all one by one raped Taranum. First Zafar, then Nayer, then Ayoob and then he (Ishtiaq) waited for his turn out side the room. Ishtiaq further stated that he peeped inside the room and saw Ayoob having made Taranum lie down on the ground with her face towards ground and was committing unnatural offence with her. After Ayoob he raped her on which Taranum became semi-unconscious. He went away. On 9-2-1978 he came back at 5 p.m. and saw everybody there. Plan was made to kill Taranum. Nayer Mirza strangulated Taranum with handkerchief while others caught hold of her hands and legs and shut her mouth. Nayer Mirza tightened the handkerchief and she died. Nayer Mirza told him (Ishtiaq) to bring a vehicle. This is so stated at page 248 of Paper book but according to original record it is stated that Nayer Mirza then put the rope around the neck and pressed it and then she died. It is further stated in judicial confession that thereafter, Tauqir went away to bring rope and gunny bag. Ishtiaq went to the house of Haji Mushtaq and brought Suzuki Van in which dead body was carried in a gunny bag and dropped near Shia Yateem Khana. All went to their houses. On 23-2-1978 police arrested Ishtiaq &t 2 or 3.30 p.m. He got the Suzuki Van recovered in which dead body of Taranum was carried and thrown. It is obvious that. only Ishtiaq has stated that Ayoob committed unnatural offence with Taranum while the other two namely Nayer Mirza and Tauqir stated that Ayoob also raped her. Secondly only Ishtiaq has stated that he was waiting for his turn out side the room while others have not stated so. Ayoob in his confession Exh.61 stated on this aspect of the story that they all decided to commit rape with Taranum. First Tauqir raped her then Zafar then Nayer and lastly he i.e. Ayoob raped Taranum and also committed unnatural intercourse whereafter she became unconscious. This is so stated at page 252 of the Paper book but in original record it appears that after Ayoob, Ishtiaq also took his turn and after that Taranum became unconscious. On 9-2-1978 it was decided to kill Taranum. For that purpose Tauqir brought a gunny bag and rope. At 9 p.m. they all caught hold of Taranum and tied her hands and legs and shut her mouth. NAayer Mirza strangulated her with handkerchief whereupon her eyes had come out. Nayer then put rope around her neck and she was killed. Nayer asked Ishtiaq to arrange for vehicle. Ishtiaq brought a Suzuki Van on which posters were pasted Dead body of Taranum in a gunny bag with her school bag was thrown near Yateem Khana. Zafar in his confession Exh.62 on this point stated that on 8-2-1978 Tauqir committed rape with the girl and thereafter he (Zafar) and then Nayer and after that Ayoob and in the last Ishtiaq committed rape with the girl whereafter the girl became unconscious and started bleeding profusely. Nayer tried to stop blood by putting cloth. On the following day they decided :o kill her. Tauqir was asked to bring a gunny bag and rope. At about 8-9 p.m. they made Taranum stand by the side of the wall and Zafar, Tauqir, Ayoob and Ishtiaq caught hold of her arms and legs while Nayer put her handkerchief around her neck and strangulated her, whereupon her eyes had come out but on removing the handkerchief it was realised that she was still alive so Nayer put rope around her neck and pressed it thereafter they put her body in the gunny bag. Nayer Wrza taut all her things in the gunny bag. Ishtiaq brought a covered Suzuki 'Van and they put the gunny bag in that Van and threw it near Shia,Yateem Khans. It is clear that there are variations and discrepancies in the confessional statements of accused persons in their narration of story of incident. These variations and inconsistencies reflect upon the credibility of the story of the incident. On reading the confessions of all the accused persons, one cannot avoid impression that story is not narrated in a truthful manner. Had the story been true then there would have not been discrepancies and contradictions and variations in the statements of all the accused persons and their statements would have reflected consensus and unanimity on the narration of story. Now we have to see what are the legal requirements of recording judicial confession. Section 164, Cr.P.C. contemplates recording of judicial confession and other such statements by a Magistrate. Statement of witness under section 164, Cr.P.C. can also be recorded in presence of accused by the Magistrate provided opportunity is given to him for' cross-examination. Judicial confession of accused under section 164,1I Cr.P.C. can be recorded in the manner prescribed under section 364, Cr.P.C. Further, section 164, Cr.P.C. enjoins upon the Magistrate in mandatory terms a duty to explain to the accused that he is not bound to make a confession but if he does so it may be used as evidence against him and further again there is another requirement in subsection (3) of section 164 which is to the effect that no Magistrate shall record confession unless upon the questioning the person making it, the Magistrate has reason to believe that it was made voluntarily and when he records any confession he shall make a memorandum at foot of such confession as under:- "I have explained to (name of accused) that he is not bound to make a confession and that if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making, it and was admitted by him to be correct, and it contains a full and true account of statement made by him." From the provisions of section 164, Cr.P.C. whatever is quoted above, it makes one thing very clear that the Magistrate has to satisfy himself by way of a mandatory duty that accused is making confession voluntarily. Even if accused refused to make confession he is not to be handed over to the same police. Government of Sind have issued "Federal Capital and Sind Courts Criminal Circulars" in which in Chapter VI Part 'C' guidelines are provided as to how the Magistrate should go about recording confession and what requirements are to be met. It is stated therein that Magistrate first must obtain prescribed form for recording judicial confession. He must remove accused from the custody of police. He must explain to the accused that he is not bound to make a confession but if he made one the same could .be used as evidence against him. Accused must be given one hour time for reflection and during that time police which brought him for confession should not be allowed to have access to him. Sections 163 and 164, Cr.P.C. when read with sections 24 of the Evidence Act would show that confession would be irrelevant if the same obtained by inducement, threat or promise. Magistrate should find out length of time during which accused remained in police custody. Magistrate should examine the body of the accused to find out if there were marks of violence. Magistrate may send the accused to judicial custody after recording the confession. In the case of Nazir Ahmad v. King Emperor A I R 1936 P C 253 it was held that the rule which applies is that where a power is given to do a certain thing in a certain way the thing must be done in that way or not at all. Other methods of performance are necessarily forbidden. No doubt the Magistrate acting under sections 164 and 364 is not acting as a Court, yet he is a judicial officer, and both as a matter of construction and of good sense, the rule above applies to section

164. Sections 164 and 364 must be looked at and construed together, and it would be an unnatural construction to hold that any other procedure was permitted than that which is laid down with such minute particularity in the sections themselves. In the case of Mst. Bakhat Bano v. The Crown P L D 1950 Lah. 68 in which it is held that confession is inadmissible in evidence unless the Magistrate is found to have made real and substantial inquiries which he was bound to do as to its voluntary nature before recording it. Irregularities in recording a confession can be cured under section 533 of Criminal Procedure Code. But it is only when the Court is satisfied that the confession had been made duly although it was not recorded duly. In other words the matter is one of substance and not merely that of form. There is a plethora of case law on the subject of judicial confession. Latest in the series is decision of Division Bench of our High Court in the case of Abdul Haleem v. The State 1984 P Cr. L J 611 in which it is held after reference to the case law that the Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. before proceeding to determine the voluntary character of the confessional statement. Further guidelines are prescribed for recording of confession as has been stated above and the emphasis is on the fact that the Magistrate must ask several questions in order to satisfy himself that the confession is voluntary. P.W.9 Bashir Ahmad Chisti, Magistrate (at page 217) has deposed that on 27-2-1978 he was Magistrate First Class and Assistant Commissioner under training and received a telephonic call from Deputy Commissioner West instructing him to record statements of accused persons in Taranum's case and after recording them inform him. This is the beginning of the deposition of learned Magistrate and we noticed that according to his own admission he was still under training and he was directed by the Deputy Commissioner not only to record confessions of accused persons in a sensational case but he was further directed to report back to him. It is further deposed by Mr. Chishti that since he had a small room with no chamber, he borrowed the chamber of another Magistrate. Investigating Officer Mohammad Khan gave him an application for recording confessions of accused persons under section 164, Cr.P.C. which is produced by him as Exh.57. This application Exh , 57 is on the record and perusal of original shows that it is written in English by I.O.Mohammad Khan and there is prayer in it that copies of such statements be allowed. The Magistrate was also pleased to pass order on the said application as "Allowed". This clearly shows anxiety on the part of Inspector Mohammad Khan who had brought personally the accused persons to the Magistrate and had filed this application with prayer for 'obtaining copies of confessional statements as he knew before hand as to what the confessional statements would be like. In the examination-in-chief, Mr. Chishti stated that he first asked five questions separately set out and then gave them time of half an hour for reflection. First he recorded confession of Tauqir Exh.58, then of Nayer Exh.59, then of Ishtiaq Exh.60, then of Ayoob Exh. 61 and lastly of Zafar Exh.62. According to Mr. Chishti, he started recording of the statements at about 1 p.m. and finished at about 6-30 or 7-00 p.m. He put the confessions in his almirah under lock and key and on the next day sent them to Malkhana. Mr. Chishti stated in his cross-examination before the trial Court that on his own instructions accused persons were made to sit in the Court room of Miss Farhat and he personally went to them. He admitted that previously he had stated that 1.0. Mohammad Khan brought all accused to his chamber, Which was not a correct statement. Learned Magistrate further stated that he asked Mohammad Khan to remove the handcuffs of accused persons and then he gave them warnings, and left the accused persons in the Court room and went to his chamber. He admitted that from the chamber only dias in the Court room was visible and not any other part of the Court room. Accused persons were made to sat not on the dias but in the other part of the room. In Verandah out side the Court room there was Police guard. In the corridor between the Court room and the chamber there was Police guard. Mr. Chishti could not say as to how many Police officers had come with Muhammad Khan when he gave warnings to the accused persons. When, he went back after warnings to accused persons, he did not know what was happening in the Court room. On this account judicial confessions became defective because of failure of learned Magistrate in exercise of proper care to see that accused persons reflected independently free from interference or fear of Police. 'Mr. Chishti admitted in his cross-examination before the trial Court that he put no questions to the accused persons about maltreatment of police or that they were beaten up by the Police. Further also he did not inspect their bodies. In these context learned Magistrate Slated further in his deposition that his house was 50 paces away from ooha03bad Police Station. He knew that incident was given wide publicity in the papers. After arrest, accused persons were shown to the public 14,llich he learnt through newspapers. He also learnt through newspapers that accused persons were produced before a Press conference. We think that in such circumstances it was all the more necessary rather sw,p:,rative for the Magistrate to have made specific enquiry in that regard by asking such questions and he should have examined the bodies of the accused persons in order to find out whether there were any n, ~:-ks of violence of Police torture. On this account also judicial t:ont>:6sions become highly defective and involuntary particularly. Before the trial Court the learned Magistrate went on further to state in his ;:e position that he read in the papers that accused persons were beaten up and they were not able to move and one such press statement was attributed to him. The learned Magistrate further denied having made such areas statement and stated that he did not deny this fact straightaway in the papers as he was not entitled to do so. However, he protested to the D.C. in writing and subsequently Press release was issued by the D.C. on 2-3-1978, copy of which is Exh.63/3 on the record, according to this Press release it was denied by the D.C. that Mr.Chishti made a statement to the Press that accused persons in Taranum's murder case complained of police torture at the time of their recording confessions. Further, Exh.63/4 is cutting from daily 'JANG' dated 28-8-1978 which is statement attributed to the Magistrate. The learned Magistrate has admitted very frankly in no uncertain terms in the cross-examination before the trial Court that after the recording of judicial confession by he had to remand accused persons to judicial custody but since he did not inform Incharge Lock-up City Court to wait and did not call for Special Police Squad from Risala Police Station or any other Police Station, he handed over the accused persons to the same Police Squad which had brought them for recording of judicial confessions so that they may be sent to judicial custody. Learned Magistrate further admitted that he did not know whether accused persons reached Jail or were taken in some other place. Even on this ground that after recording of judicial confessions, accused persons were given back the same ; ou: s= which had brought them, voluntariness of the confessions become seriously affected and in consequence such confessions become vitiated and devoid of evidentiary value. Reference is made to the cases of Wazir and others v. The State P L D 1960 (W.P.) Kar. 674 and Hakim Gul v. The State P L D 1964 (W.P.) Pesh.

1. Mr. Chisthi denied that accused Zafar had injuries on his and his foot was swollen and he was not able to walk. He admitted .. after recording of judicial confessions he informed the Deputy Commissioner on telephone. He denied that when Ishtiaq was {)r:,ueht before him he had injuries on his person and had swollen legs and was, limping. Another defect in the judicial confession is that these confessions were recorded after accused persons had remained in custody of police for five days. Record shows that all accused persons were arrested on 23-2-1978 and their confessions were recorded on 27-2-1978. In this context P.W. 45 Mohammad Khan, Inspector deposed that he called Ayoob on 22-2-1978 and took specimen handwritings from him which he sent to the expert and on the following day after being informed by the expert about positive finding, he arrested Ayoob on 23-2-1978 and at his pointing out arrested remaining four accused persons. Now if Ayoob had really written the ransom letter which was published in newspapers and then when he was called at Police Station, he went there and gave specimen handwritings which were sent to the expert. On the following day when he was called at Police Station he went again and was arrested. We wonder why lie did not attempt to run away if he had really written that ransom letter. We also wonder why he was so submissive and even he did not resist to give his specimen handwriting for as many as 23 times. Secondly when on 23-2-1978 at the pointing out of Ayoob all other accused persons were arrested then judicial confessions could have been recorded on that day if the accused persons were prepared. At least Ayoob could be expected to be ready for judicial confession on that day particularly after he gave specimen handwriting and report of Expert was positive. Why police took as many as five days to make accused persons ready for their judicial confessions and the only possible inference which can be drawn is that they were not .willing and ready. Inspector Muhammad Khan who conducted the investigation and produced accused persons before the Magistrate for judicial confessions has not in his evidence before the trial Court given one single reason in explanation as to why he produced accused persons for confession on the fifth day of their custody and why not earlier. Mr. Abdul Wahab Khan, Special Public Prosecutor contended that mere fact that accused person remained in custody of police for some time, would not lead to conclusion that confessions were tutored. He further stated that directions contained in the Federal Capital and Sind Courts Criminal Circulars were directory in nature and its irregularity would not vitiate confessions. Reliance was placed by him on the case of Syed Sharifuddin Pirzada v. Sohbat Khan and others P L D 1972 S C

363. This, case of Sohbat Khan has been distinguished in another case of Mohammad Nasim Agha v. The State 1978 P Cr. L J 579.Relevant paragraph on this point in the later case at pages 582 and 583 is reproduced as under:- "It is our experience that whenever the accused are inclined to make a voluntary confession, they generally do so within a short time of the detection of their offence or their arrest. The longer a person remains in police custody, the greater is the suspicion that the confession is the result of duress or undue pressure. We are conscious of the fact that there may be special cases where a confession by an accused may be voluntary though there may he some delay in the making thereof or the accused may have been in police custody for sometime before making of the confession. In this connection we may refer to the case of Syed Sharifuddin Pirzada v. Sohbat Khan (supra). In that case the contention that the appellant had remained for 13 days in police custody before his confession was recorded and on that account the confession could not be relied upon was .repelled with the following observations:- "The fact that Sohbat Khan was for some time in the police custody does not lead to the conclusion that he was tortured. Remaining of accused persons for some time in the police custody does not affect their judicial confessions. Mr. Azizuddin, A. C. M.; who recorded the statements has clearly stated in his statement that full opportunity was given to the accused persons to explain the circumstances in which they were giving their statements and complied with the pro forma which was available for recording the judicial confessions. This shows that the confessions were made voluntarily." "We may, however, respectfully submit that the circumstances of that case were entirely different as besides the judicial confession, there was a mass of other reliable evidence against accused Sohbat Khan including extra-judicial confession which was made on the very night of the incident to two persons, whose testimony was relied upon. The Courts, on the other hand, generally took with extreme suspicion upon any undue time lag which elapses between the arrest of the accused and the making of his confession, because this time lag can and is often used for putting pressure upon the accused, or giving him some threat, inducement or promise, to make him confess, which factors may not be erased from his mind by the short duration which Magistrates usually afford to the accused for reflection before proceeding to record their confessions. In Manzoor v. State (supra), a confession of an accused recorded after he had been in custody, for more than 24 hours, was excluded from consideration on the ground that the Investigating Officer had failed to give satisfactory explanation for the detention time of the accused for more than the statutory period of 24 hours. In Syed Anwar v. State (supra) which was a case under sections 3, 4 and 6 of the Explosive Substance Act and Rule 43 of the Defence of Pakistan Rules, the fact that the confession of the appellant was recorded after one week of his arrest was held to militate against the confession being considered to be voluntary. In that case also, the plea put forward by the Investigating Officer that he had other duties to perform and, therefore, the production of the appellant for the recording of his confession was put off was held to be clumsy and without any substance. Reference may also be made to a decision of this Court in Abdul Majid v. State, where a Division Bench of this Court held that the delay of more than 40 hours between the arrest of the accused and the recording of his confession would , lead to the inference that no evidentiary value can be placed on such confession, if the delay is not explained. As already stated, in the instant case, there has been a delay of 11 days in the recording of the confession of appellant Muhammad Nasim Agha, and the explanation by D.S.P. Altaf Ali for the delay does not appear to us to be convincing or to be worth of much credit." Dealing with judicial confessions recorded under sections 194 and 364, Cr.P.C., same are to be considered in the light" of sections 80 and 24 of the Evidence' Act. Section 80 of the Evidence Act lays down that when any document is to be prepared in judicial proceedings before a judicial officer then presumption is attached to that document to be genuine, unless proved otherwise. This section throws burden upon the accused to prove that judical confession is not voluntary. On the other hand section 24 of the Evidence Act provides that the confession would be irrelevant if the same appears to the Court to have been caused by inducement, threat or promise. It, therefore, follows that if it is alleged by the accused that the confession is not voluntary then burden is upon him but that burden is muchless than proof as is clearly contemplated under section 24 of the Evidence Act in which the words are used to the effect that "if it appears to the Court". In the case of Muhammad Ramzan v.The State P L D 1961 (W.P.) Lah. 167 in which it is held that use of words "if it appears" in section 24 indicates a lesser degree of probability than would be necessary if "proof" had been required. The Court has to hold that the making of the confessions appears to have been caused by any inducement, threat or promise upon the evidence before it. The inference may be suggested by the confession itself or by evidence adduced by the accused or by the surrounding circumstances which the Court is always bound to take into consideration but the conclusion cannot be based on surmise or conjecture. Whether or not a confession is admissible in evidence is a matter which is to be decided after a full consideration of the evidence and the particular circumstances of the case. In the instant case before the trial Court, apart from categorical admissions of learned Magistrate that he did not inquire from accused persons whether they were subjected to violence and did not inspect their bodies, Inspector Muhammad Khan, who has investigated the case, admitted in his cross-examination that the accused persons after recording of their judicial confessions, when they were sent to Jail have filed criminal complaints against him and other police officers about beating which are pending in the Court of Additional Sessions Judge No. V at Karachi. Of course suggestive questions were put to him during the cross-examination about torture by police which he has denied. All the accused persons before the trial Court in their statements under section 342, Cr. P. C . have categorically stated that they have signed judicial confessions under duress and they have filed complaint against Police officers which are pending in the Court of Vth Additional Sessions Judge at Karachi. Certified copies of two such complaints have been produced which have been filed by Tauqir and Mohammad Ayoob for offences under section 323, 330 and 506/34, P.P.C. and accused persons named therein are Mohammad Khan Inspector, Moinul Islam A.S.I. and Manzoor Ahmad, Head Constable. Date of filing of complaint of Tauqir is 11-3-1978 and that of Ayoob is 25-3-1978. It was further submitted on behalf of the appellants that accused persons after being remanded to Jail made an application to the learned Sessions Judge to be sent for medical examination and they were medically examined by the Doctor on 2-3-1978 under the orders of Sessions Judge and result of examination of Nayer Mirza, Mohammad Tauqir and Zafar has been produced. There is also medical report showing injuries on the person of Muhammad Ayoob appellant who was examined on 7-3-1978. Further, original records containing these documents in Criminal Bail Nos.336/78 and 348/78 of Nayer Mirza and Muhammad Ayoob respectively have been summoned and perused.In this context, counter argument was raised by Mr. Abdul Wahab Khan that accused persons in the case were medically examined for potency certificates by the doctor on 25-2-1978 and such certificates Exh.19,20, 21, 22 and 23 do not show any injury on the persons. Mr. Hayat Junejo replied the argument by stating that judicial confessions were recorded on 27-2-1978 hence absence of injuries on the person of accused persons on 25-2-1978 does not help the prosecution but helps the defence that they were maltreated and subjected to violence subsequently for judicial confessions which were extorted from them on 27-2-1978. It is stated that these criminal complaints are pending in Court and this fact is admitted by the prosecution. It is further stated on behalf of the defence that three Police officers named in the Criminal complaints were promoted after the recording of judicial confessions by way of reward. We have to view this matter in the light of section 24 of the Evidence Act for the purpose of determining voluntary character of judicial confessions only. In that context, the legal requirement is that these confessions appear to the Court to have been caused by inducement threat or promise. For that production of documents stated - above is more than sufficient. We do not want proof which will be required in the trial Court which has to decide these Criminal complaints. We, therefore, hold that these judicial confessions are not voluntary Moreover no satisfactory corroboration is available against appellants Ayoob and Tauqir to supplement their retracted judicial confessions. Against Ayoob reliance is placed on the evidence of N hand-writing expert, P.W.43 Ghulam Abbas, who has given positive finding Exh.126. According to this report hand-writing in Exh. 13 tallied with specimen handwriting in Exhs.69/1 to 69/21. The most important and pivotal document is Exh. 13 which is ransom letter. Originality of Exh. 13 to .be the very same received by complainant Aziz Ahmad has become very doubtful. According to the prosecution case P.W.4 (at page 110) Aziz Ahmad Baig received this letter at his house which was delivered to him by accused Ishtiaq, driver of Mushtaq on 7-2-1978. At that time Muzammal and Haji Mushtaq were present and they also saw the letter. This letter was taken to D.S.P. Abdullah Khan and delivered to him. P.W.4 Aziz Ahmed Baig who is father of deceased girl refused to admit in the trial Court Exh.13 to be the same letter which he handed over to D.S.P. Abdullah Khan. He was declared hostile and cross-examined. This witness stated further that no Mashirnama of recovery was prepared when the ransom letter Exh. 13 was delivered to D.S.P. Abdullah Khan.Nothing special was elicited in the cross-examination to Special Public Prosecutor except that accused Nayer Mirza was son of complainant's brother and complainant was looking after him after the death of Nayer's father. A suggestive question was put to the complainant that he was giving false statement to save Nayer which he denied. We wonder why complainant challenged the genuiness of the ransom letter, which is the spring-board of the prosecution case. Daughter of complainant aged about 7 or 8 years was murdered in a most cruel and inhuman manner after she was subjected to rape and sodomy and complainant himself was being black-mailed. In such circumstances complainant would not try to save culprit even if he was son of his own brother. Any way there is nothing further available in the cross-examination of complainant which was made by the Special Public Prosecutor on this point. Muzammal and Haji Mushtaq who were present with complainant at the time when ransom letter was received were not examined by the prosecution. Ransom letter was handed over to D.S.P. Abdullah Khan in presence of Mukhtar Ahmad, who has been examined as P.W.9. (at page 157). In the trial Court this witness stated that he met Aziz Ahmed Baig at his house who showed him the letter which he had received. When Exh.13 was shown to him, he deposed that so far his memory went, perhaps this was the same letter again said may be it was the same letter. This witness was very hesitant and subsequently denied preparation of recovery memo. Of this ransom letter. He was declared hostile and cross-examined by the Special Public Prosecutor. Recovery memo. Exh. 28 is signed by Mukhtar Ahmed. Another witness who has signed it is Azizuddin son of Azimuddin. He was examined as P.W.37 (at page 174). In the trial Court he denied that Exh. 13 was the same document which was recovered by the police vide memo. Exh.28 signed by him. This witness was also declared hostile and cross-examined by the prosecution. He admitted his signature on Exh.28 but stated that date was put on it subsequently. He has further stated that he remembered that the ransom letter contained a demand of Rs.1,00,000 and was signed by one July Khan and Exh.13 contains all the three ingredients but is not the same letter which was seized. This leaves us with the evidence of Muhammad Mehboob, who is examined as P.W'.14 (at page 180). According to him he was called by Abdullah Khan, D.S.P. when ransom letter Exh.13 was handed over to him and he prepared recovery memo. Exh.28. In the examination-in-chief, this witness stated that on 6-2-1978, he was in his office when at about 12-30 p.m., he was called by D.S.P. Abdullah Khan. He made such entry in the Station Diary and produced the copy as Exh.

40. Exh.40.shows date 7-2-1978 and not 6-2-1978. It appears from the deposition of Muhammad Mehboob that he was directed by the D.S.P. Abdullah Khan to prepare recovery memo. Exh.28 and then took the ransom letter Exh.13 to his office, prepared photostat copies, sent them to all police stations and sent the original letter to handwriting expert. This method adopted 'obviously was not correct. Ransom letter was very important document and when it was produced before the D.S.P. Abdullah Khan by complainant Aziz Ahmad Baig, signature of Aziz Ahmad should have been obtained thereupon and Abdullah Khan D.S.P. should also have signed it, and then a separate recovery memo. could have been prepared. Signatures on the ransom letter would have ensured the originality of the letter without leaving any room for doubt. In the absence of such authenticity, we have to rely upon the word of S.I. Muhammad Mehboob who has simply stated that he made photostat copies and sent the original letter to the Handwriting Expert. In the cross-examination -he stated that he did not make any entry in the diary for sending the letter to Handwriting Expert. He did not obtain signature or initial of any person on letter Exh.13. He admitted that normally letter is sent to Handwriting Expert only when similar writing is available for comparison. He admitted that he did not give any instructions to the police station where photostat copies were sent. He further stated that he got photo copies prepared in Saddar on cost. P.W. 43 Ghulam Abbas (at page 381), D.S.P. Forensic Branch has deposed before the trial Court that on 6-2-1978 he received a letter from C.I.A. police alongwith questioned document for examination of the handwriting and his opinion. a produced letter Exh.128. He saw in the Court Exh.13 and admitted it was the same questioned document which was sent to him for`- examination without specimen handwriting for comparison. Cover letter Exh.128 shows that it was written by Mehboob Khan S.I. and further contents do not show that any precautionary measures were adopted' to send ransom letter in the sealed cover or handed over personally to the expert. On the other hand contents show that ransom letter was just sent. In what manner it was sent is not clear. In the circumstances we hold that manner in which ransom letter was handled by the police is unsatisfactory much there is a lurking doubt with regard to the originality of F:xh.13.I0 For that reason it would not be fruitful to go into the findings of the expert and comparison of specimen handwriting with Exh.13. Against the judicial confession of Tauqir, the learned trial Judge has relied upon corroborative evidence of recovery of note 'Gook containing draft of ransom letter Exhs.72 and 13 blood-stained sanitary pads which have been found by the Chemical Examiner to be stained with human blood. This, we feel, has been done not with proper judicial application of mind. Exh.72 is rough draft of ransom letter. It is not the case of prosecution that handwriting in Exh.72 is that of Tauqir. On the other hand the case of the prosecution is that note book containing Exh.72 belongs to Zafar. This note book was not produced by Zafar and was not recovered in presence of Zafar. Zafar has been acquitted and this note book containing Exh.72 cannot be used against Tauqir. Secondly about recovery of 13 sanitary cotton pads, the finding of the Chemical Analyser is that human blood was detected on them. It is the case-of prosecution that Tauqir while in custody pointed out this house but sanitary pads were not recovered by the police at the pointing out of Tauqir. It is mentioned in Mashirnama of scene of offence Exh.74 (at page 296) that during the search these sanitary pads were recovered from dump of garbage under a mango tree in the courtyard. Sanitary pads were contained in empty paper bag. Recovery memo. is attested by Manzoor Hussaih Shah and Raja Rehmat Raja Rehmat has been examined as P.W.22 (at page 288). Accused persons in their judicial confessions have not spoken about using these 13 sanitary cotton pads. Tauqir in his judicial confession Exh.58 stated that Nayer arranged for sanitary towel to stop the blood. Only one sanitary towel is mentioned and not

13. Nayer in his judicial confession Exh.59 has spoken about ~;c)pping blood with cloth. Ishtiaq Ali in his judicial confession Exh.60 does not talk about bleeding at the time of rape or stopping the blood. Ayoob in his judicial confession Exh.61 also does not talk about bleeding at the time of rape or stopping the blood.Zafar in his judicial confession Exh.62 stated that Nayer Mirza stopped bleeding by tying a cloth. Additionally it would be worth while to mention that Tauqir in his judicial confession stated that one Anwar Fatima, daughter of his mother's friend lived in House No.564/2 and he offered that house to be used for offence. He further stated that he shifted Anwar Fatima and others to his own house on the pretext that the same was to be used for white washing. P.W.45 Inspector Muhammad Khan Accussed before the trial Court that during the investigation he examined one Mst.Anwar Fatima in connection with the house in which the crime was committed. He did not cite her as witness nor supplied copy of her statement to the accused. This Anwar Fatima was an employee of Federal Public Service Commission. She produced certificate from her office showing her residence in that house. Exh.149 on the record i application of Mst. Anwar Fatima addressed to the S.H.O., Police Station, Joharabad. This application is dated 27-2-1978 and request is mate therein by Mst. Anwar Fatima that her house was taken up by the police on 25-2-1978 for the purpose of inspecting the same and ~::~i now the key should be returned and her possession of the house '::_handed over to her. Number of the house given therein is 564, Block No.2, Azizabad, Karachi. Inspector Muhammad Khan has admitted to have examined Mst. Anwar Fatima and Exh. 151 on the record shows that she was required by S.H.O. to attend for examination on 3-3-1978 at 4-00 p.m. In the circumstances possibility cannot be ruled out that the sanitary cotton pads could belong to the lady named above. The upshot of the whole discussion is that we view with doubt truthfulness and voluntary character of judicial confessions. It appear to us that when Ayoob was called at the police station, he came there P readily and without hesitation and he gave specimen of his writing, which were, sent to handwriting expert. Ransom letter was already published in newspaper. Ayoob was arrested on 23-2-1978. He pointed out all other accused persons. From that moment the secret was out. Recoveries were also made. Then why judicial confessions were not recorded earlier and why accused persons remained in custody for about five days. Secondly it appears from the perusal of judicial confessions that all recoveries were made before the recording of judicial confessions and all those facts which were already in the knowledge of police have been reproduced in the judicial confessions. Nothing has been recovered after the recording of judicial confessions to prove confirmation of any particular fact or circumstance appearing in judicial confessions. In the circumstances possibility cannot be ruled out that judicial confessions can be tortured. We have already held above that. judicial confessions were not made voluntary and there was sufficient material available to show that accused persons were maltreated and were subjected to violence. According to the prosecution Taranum Aziz was kidnapped from school in a stolen white car with black top No. KAF.4093.This car was used only for carrying her' to the house situate in Azizabad. This car was abondoned in the jungle. Doad body was carried in gunny bag in covered Suzuki Van which was brought by accused Ishtiaq Ali. Strangely blood has been found in the car in which dead body was not carried. Furthermore, at the time-of recovery of the car chocolate wrappers and a small pencil were found to support the allegation that these chocolates or toffies were given to Taranum Aziz at the time when she was kidnapped in the car. Prosecution lost sight of the fact that car was abondoned on the same day i.e. 5-2-1978 and was recqvered by police on 7-2-1978 vide Exh. 101 (at page 330). At the time of preparation of recovery memo. only tape-recorder was found to be missing. This car was handed over to the owner P.W.29 Sikandar (at page 332) on 9-2-1978 under the orders of the Magistrate. The car was taken back in possession by police' again - on 11-2-1978 after it remained in the possession of owner for about three days. This recovery was made vide memo. Exh.89. At the time of recovery blood was found in, the car and three toffee wrappers and a small pencil. Now how can this act be forgotten that the car was in possession of owner for three days and. even before that it was abandoned on 5-2-1978, This only shows excessive enthusiasm of investigating police and in that process incriminating places of evidence could not be collected to connect accused persons with commission of crime. Another fact worth mentioning is that it is the case of the prosecution that Tauqir while in custody led Inspector Muhammad Khan and Mashirs to the shop of one Rizwan and in that context Exh.71 (at page 295) was prepared. Exh.71 shows that Tauqir pointed out shop by name "Delux Paint .Place" from where he purchased gunny bag and rope. Shopkeeper Rizwan Ahmed was present to confirm this fact and produced a bunch of similar rope which was purchased for R6.3 and receipt was also taken from him. Now this is unnecessary. Rizwan Ahmed has not been examined by the prosecution. Gunny bag from which dead body was recovered and rope with which dead body was tied should have been taken to Rizwan Ahmed for identification whether they were purchased from his shop. This could not be done perhaps for the reason that gunny bag and rope were sealed as incriminating articles at the time of recovery. Second possibility was that Rizwan Ahmed should have identified Tauqir as the same person who purchased those articles from his shop. Another factor worth mentioning is that although it is alleged that five accused persons subjected victim girl to rape and sodomy but S no semen was detected in her private parts. According to report of Chemical Examiner Exh. 146, 13 articles contained in ten parcels were sent to Chemical Examiner including the clothes of Taranum Aziz and 13 cotton sanitary pads but semen was found only on one Article No.12 which is cover of fazai. It is surprising that semen was not found on sanitary pads and Shalwar of dead girl. It is mentioned in Exh.25 (at page 153) which is Mashirnama of recovery of dead body that at the time of recovery she was wearing white Shalwar and blue frock. It is also mentioned in Inquest Report Exh.66 (at page 268) that deceased was wearing white Shalwar and blue shirt. It is not understandable why there were no semen stains on the Shalwar of deceased. Strangely enough the Chemical Examiner could not. detect semen in Article No. 6 which were two slides (rectal and vaginal) of deceased girl. When we put this question to Mr. Abdul Wahab Khan, Special Public Prosecutor as to why semen was not detected when the allegation is that deceased was subjected to rape by as many as five accused persons and she was also subjected to sodomy and all the five accused persons were youthful with the exception of Ishtiaq Ali who was middle aged. The reply of Mr. Abdul Wahab Khan was that perhaps the accused persons did not discharge. We would only like to say this much in this respect that incident took place way back in the month of February, 1978 and statements of accused persons were recorded under section 342 in the trial Court in the month of June, 1983 which was after about five years. So, at the time of incident accused persons were five years younger and in this way five years are to be deducted from the age of accused persons shown in their 342, Cr. P. C . statements. Accordingly at the time of incident Nayar Mirza was 19 years old, Zafar was 20 years old, Ayoob was 21 years old and Tauqir was 18 years old, Accused Ishtiaq Ali was 40 years old. Normally speaking if there is allegation of rape by such young persons there could be expected seminal discharge. Strangely enough accused persons in the confessions also did not speak about discharge. We might as well-mention here prosecution has produced so much other evidence which ::. .~ ~~- . y and has no real incriminating value. Any way our appraisal of ,-~;: e) produced by prosecution induces us to conclude that prosecution ~, .: failed miserably to prove the case against accused beyond doubt ,)dtT' we, therefore, give benefit of doubt to the appellants and acquit them and set aside their conviction and sentence. In the result appeals are allowed and reference of confirmation of death sentence is rejected Appellants be released at once, if not wanted in any other case. M . Y . H .