P L D 2006 Supreme Court 30 (PLP)

MUHAMMAD NAWAZ ABBASI, J.

The petitioner namely, Manjeet Singh, alias Surbajeet Singh, an Indian National and a condemned prisoner, has sought leave to appeal in these three connected petitions, bearing Nos.529 to 531 of 2003, filed by him under Article 185(3) of the Constitution of Islamic Republic of Pakistan against the separate judgments dated 10-12-2001 passed by a Division Bench of the Lahore High Court whereby the Criminal Appeals bearing Nos. 105-J, 107-J and 68-J of 1991, respectively, which arose out of the three separate criminal cases registered at Police Stations Ghaziabad and Anarkali, Lahore and Police Station, Kotwali Faisalabad under sections 302/307 read with Explosive Substances Act, 1908 in which the petitioner having been tried by the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975 (Act XV of 1975) was convicted and sentenced as described hereinafter, were dismissed. These petitions involving common questions of law and being based on the similar facts, are proposed to be disposed of through this consolidated judgment.

2. The petitioner was arrested by Mujahid Force, on 30-8-1990 near Kasur Border in the territory of Pakistan and was handed over to Intelligence Battalion, Lahore, for interrogation. During the course of interrogation, he having told his name as Manjeet Singh alias Surbajeet Singh son of Sulakhan Singh resident of Bhikhiwand Police Station Bhiki Wand, District Amritser, India, disclosed that he was trained by IMI and RAW, the Indian Intelligence Agencies and was sent to Pakistan for spying and terrorist activities. The petitioner on showing his willingness to make a confessional statement, was produced before the Cantt. Magistrate, Lahore, on 8-9-1990 and the Magistrate after observing the legal formalities, recorded his confessional statement under section 164, Cr.P.C. The petitioner made the following statement:

3. The brief facts in each case relating to the bomb explosion, caused at different places, mentioned in the confessional statement of the petitioner, leading to these petitions, are given as under:

I. Criminal Petition No.529 of 2003 (JP No.57 of 2002 (F.I.R. No.91 of 1990 Dated 28-7-1990)

4. In this case, an explosion was caused in a Bus bearing No.LEM 3252 at Chowk Nizamabad in the area of Police Station Ghaziabad, Lahore, at 12-45 p.m. on 28-7-1990, as a result of which bus was smashed and 12 passengers including Muhammad Iqbal, bus driver, Shaukat Ali bus conductor and Asmat Ali, bus helper, were injured whereas Javed, a minor boy, lost his life. Malik Muhammad Ashraf, owner of the bus and Haji Sultan Ahmed, complainant also witnessed the occurrence. The case was registered under Section 3/4 of Explosive Substances Act, 1908, read with sections 302/307 PPC, on the same day vide FIR No. 91 at Police Station Ghaziabad, Lahore. Subsequently, on disclosure of the petitioner in his confessional statement before a Magistrate at Lahore, of his involvement in the above explosion, he was sent up for trial before the Special Court, established under Suppression of Terrorist Activities (Special Courts) Act, 1975 and was charged as under:-- "That you on 28-7-1990, at 12.45 p.m. (noon) you unlawfully and maliciously caused explosion to endanger life and to cause serious injury to property in a bus No.3252-LEM at Chowk Nizamabad, within the area of P.S. -Ghaziabad, Lahore and thereby committed an offence punishable under section 3 of the Explosive Substances Act, 1908 which is a scheduled offence:-- That on the same day, time and place by the above said explosion you caused the death of Javaid a minor of 8 years and thereby committed an offence punishable under section 302, P.P.C., which is a scheduled offence: That on the same, day, time and place by the above explosion you caused injury to Shaukat Ali, Ismat, Meraj Bibi, Anwar Bibi, Farrukh Sultana, Inayatullah, Aqila Sunbal, Nusroo Bibi; Jameel Khan, Wajid, Dawood, Mudassar, and thereby committed an offence punishable under section 307, P.P.C. which is also a schedule offence: "

5. The petitioner pleaded non-guilty to the charge whereupon prosecution placing reliance on the confessional statement of the petitioner, produced its evidence. Haji Sultan Ahmed son of Karam Dad (P.W.1), complainant, deposed that he along with Muhammad Ashraf, was sitting on a tyre repairing shop when at 12-45 p.m. bus bearing No.LEM 3252, owned by Muhammad Ashraf, reached at Nazimabad Chowk and suddenly an explosion took place in the bus as a result of which a boy namely, Javed was killed whereas a number of passengers were injured. Shaukat, Ali (P.W.2) conductor of the bus, identifying the petitioner in Court, deposed that on the day of occurrence at about 12 noon, before the bus proceeded from Railway Station for Ghaziabad, he noticed that petitioner after boarding on the bus, got down and when the bus reached Nazimabad Chowk at 1240 p.m. as a result of bomb blast in it, he and a number of other persons sustained injuries. Muhammad Arshad son of Barkat Ali (P.W.4) bus driver, while making a similar statement identified the petitioner in the Court as the same person of wheatish complexion and black hair of the age of 25/26 years who while holding a bag in his hand, after boarding the bus, got down while the bus was still at the Railway Station Bus Stand. Syed Abdur Rashid (P.W.3) prepared site plan of the place of occurrence whereas Adam Khan son of Hazrat Khan identified the dead body of Javed, a minor boy, who was killed in the explosion. Dr. Shahzad Shamas (P.W.5) and Dr. Mian Abdur Rauf (P.W.6), medically examined the injured persons and issued death certificate of Javed. Inspector Muhammad Sadiq, A.T.C., Special Branch (P.W.7), formally arrested the petitioner as accused in this case on 18-2-1991 and partly conducted the investigation. The petitioner was produced by Major Abbas (P.W.12) of Intelligence Battalion, Lahore, before Muhammad Khalid Zooq (P.W.8) Magistrate, Lahore, Cantt. on 8-9-1990 for recording his confessional statement under section 164, Cr.P.C. The Magistrate in his statement before the trial Court, deposed that he had warned the petitioner before recording his statement that same could be used against him as evidence and by putting certain questions, informed him that he was not bound to make any statement. The Magistrate also deposed that he having got removed his handcuffs and sending all the persons including police officials out of the Court, provided the petitioner, a free atmosphere and sufficient time to think as to whether he should make or should not make the confession and that having observed all legal formalities and satisfying himself that petitioner was volunteered to make confession, recorded his statement. Dr. Tahir Mahmood (P.W.9) medically examined the injured persons namely, Nasro daughter of Muhammad Khan, a young girl, Shoukat Ali son of Sardar Ali Conductor of the bus, Mst. Sultana, daughter of Jevon Khan, Azmat Ali son of Muhammad Sardar, helper of the bus, Anwaar Bibi daughter of Maqsood, Meraj Bibi wife of Barkat, Jameel Khan son of Umar Khan, Wajid Dawood and Mudassar and also Javed son of Umar Khan a boy of tender age who subsequently succumbed to the injuries. Zahid Abbas Inspector/S.H.O., Police Station Ghazi Abad, (P.W.10) and Malook Ali, S.-I. (P.W.11) conducted the investigation.

6. Major Ghulam Abbas, Intelligence Battalion, Lahore, (P.W.12) stated that petitioner was an Indian national who was arrested from the area of Kasur Border and during the interrogation he disclosed that he was trained by Sri Wasti, a D.S.P. in RAW for terrorist activities in Pakistan and having disclosed his involvement in the different bomb blasts cases in Pakistan, showed his willingness to make a confessional statement therefore, he was produced before a Magistrate at Lahore. This witness also stated that at the time of arrest, petitioner was found in possession of a fake Pakistani National Identity Card bearing the name of Khushi Muhammad son of Allah Bakhsh, resident of Baggo, Tehsil and District Kasur on which the photograph of the petitioner was pasted.

7. The learned trial Judge, on the conclusion of trial, having found the petitioner guilty of the charge, convicted and sentenced him as under:-- (a) Death under section 3 of Explosive Substances Act 1908; (b) Death under Section 302, P.P.C. for committing murder of Javed, a minor boy, by explosion with direction to pay fine of Rs.20,000 and in default of payment of fine to undergo R.I. for one year. Under Section 307, P.P.C. he was convicted and sentenced to R.I. for a term of 10 years for causing injuries to the persons named therein with a direction to pay Rs.10,000 as fine and in default of payment of fine to undergo R.I. for six months.

2. Criminal Petition 530 of 2003 (JP No. 58/2002). (FIR No. 105/90) The bomb blast occurrence in this case had taken place at about 7-00 p.m. on 18-5-1990 outside Malik Theatre Cinema, Bhati Gate, Lahore and case was registered under sections 302/307, P.P.C. read with sections 4/5 Explosive Substances Act, 1908, vide F.I.R. No. 105 dated 18-5-1990 at Police Station Anarkali, Lahore, on the complaint lodged by Muhammad Munir, an injured witness. In this explosion, 9 persons were killed and 54 were injured. In consequence to the disclosure made by the petitioner regarding the bomb blast in his confessional statement, he was challaned to face trial before the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975. The petitioner was charge sheeted as under:-- "That you on 18-5-1990 at 7-10 p.m. at Chowk Bhatti Gate, Lahore, unlawfully and maliciously caused an explosion resulting in the death of 9 persons and injuries to 54 persons and thereby committed an offence punishable under section 3 of the Explosive Substances Act, 1908. Secondly on the said date and time being in possession of explosive material and endangered life of person and cause serious injury to property and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Thirdly on the day and time by causing explosion intentionally cause the death of Mehraj Din s/o Haroon Khan and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Fourthly on the same day and time by causing explosion intentionally caused the death of Muhammad Siddique and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Fifthly on the same day and time by causing explosion intentionally caused the death of Mehar Din and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Sixthly on the same day and time by causing explosion intentionally caused the death of Mehmood Ahmed and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Seventhly on the same day and time by causing explosion intentionally caused the death of Manzoor Ahmed and thereby committed an offence punishable under section 4 of the Explosive Substances Act. Eighthly on the same day and time by causing explosion intentionally caused the death of Bilal Mustafa and thereby committed an offence punishable under section 4 of the Explosive Substances Act."

8. The prosecution in consequence to the plea of not guilty taken by the petitioner to the charge, produced its evidence consisting upon the oral testimony of witnesses. Haji Shah, Moharrar/Head Constable Police Station New Anawkali, (P.W.1), on receipt of complaint from Alamdar Hussain Inspector Police recorded the formal report. Muhammad Munir son of Abdul Majeed, an eye-witness deposed that at about 6-00/7-00 P.M. he had gone to see his uncle Muhammad Ashaq who used to sell medicines near Malik Theatre, Cinema Bhati Gate Lahore on a vehicle when all of a sudden, a bomb exploded as a result of which he along with a number of other persons, sustained injuries and 6/7 persons were killed. Muhammad Ashraf, (P.W.3) stated that on 18-5-1990 in an explosion at about 7-00 p.m. near Malik Theater Cinema Bhati Gate Lahore his brother Muhammad Arshad, who had gone to bazaar for purchases was killed. Muhammad Aslam son of Amir Din (P.W.4) has also witnessed the occurrence. Muhammad Tufail (P.W.S) stated that he was selling medicines near Malik Theater Cinema Bhati Gate Lahore on a pickup when the petitioner, present in Court, approached him with the request for placing his bag there for some time so that he could go to the shrine of Data Darbar and then after placing the bag near pickup, he went to Data Darbar. The witness further stated that after some time, there was a bomb blast as a result of which 6/7 persons were killed and several' including him, were injured. Dr. Pervez Rana (P.W.7) issued death certificate of the victims of the occurrence. Muhammad Sadiq, Inspector, ATC (P.W.8) having obtained custody of petitioner from 4 corps, HQ, Lahore, arrested him on 11-2-1991 and during the investigation, the petitioner having taken the police party to the scene of occurrence, pointed out the particular place where he had kept the explosives. Major Abbas, Intelligence Battalion, Lahore, (P.W.10) stated that petitioner was given in his custody on 30-8-1990 and during interrogation, he disclosed that he was trained by D.S.P. Sri Wasti of RAW, an Indian Intelligence Agency, for terrorist activities hi Pakistan and petitioner having disclosed that he caused explosions at different places, was volunteered to make a confessional statement before a Magistrate. This witness also stated that at the time of arrest of petitioner near Kasur border, a fake N.I.C. of the name of Khushi Muhammad, which was containing photograph of petitioner, was recovered from his possession. Alamdar Hussain, Inspector (P.W.11) conducted investigation of the case and Saeed Khan (P.W.12), an other eye witness of the occurrence deposed that in his presence petitioner posing himself a police official entered in the cinema hall of Malik Theatre Cinema, Bhatti Gate, Lahore before the explosion whereas Shoukat Saleem (P.W.15) gate keeper of Malik Theatre Cinema claiming to have identified the petitioner in police custody when he was brought at the spot, stated that he was the same person who despite his resistance posing himself as a Havaldar in police department, entered in the hall and after termination posing himself as of film show, there was a bomb blast outside the cinema.

9. Dr. Ghafoor Ahmed (P.W.13) medically examined the injured person, namely, Muhammad Munir son of Abdul Majid, Iftikhar son of Naik Muhammad, Afzal Khan son of Ali Gohar Khan, Tanveer son of Bashir Ahmed, Abdul Karim son of Khushi Muhammad, Khial Hussain son of Ghulam Sarwar, Ali Aftab son of Muhammad Arif, Muhammad Ali son of Mangta, Ghulam Hussain son of Sardar Ali, Haji Aslam son of Muhammad Tufail, Ali Asghar son of Muhammad Ashiq, Muhammad Munir son of Muhammad Yaseen, Aslam son of Sultan Mehmood, Muhammad Aslam son of Rang Ali, Ahmed Ali son of Muhammad, Muhammad Arshad, Hafiz Muhammad Rainzan son of Ahmed Yar, Munir Ahmed son of Ghulam Din, Shahnawaz son of Siraj Din, Muhammad Aslam son of Ameer Din, Mushtaq son of Allah Ditta, Shahid son of Sadiq, Shafi Muhammad son of Ghulam Muhammad, Sultan son of Muhammad, Din Muhammad son of Ghulam Habib, Abdul Rashid son of Ch. Bassa, Mushtaq son of Abdur Rehman, Muhammad. Ali son of Ghulam Muhammad, Saeed Khan son of Muhammad Tezar, Zahid Iqbal son of Muhammad Din, Muhammad Asif Ali son of Muhammad Ali Khan, Ahmed Ali soli of Sardar Din, Muhammad Ibrahim son of Shah Gul, Baber son of Muhammad Sharif, Haji Habib Ullah son of Karim Bakhsh, Sohail Ahmed son of Abdul Aziz, Muhammad Bashir son of Muhammad Ismaeel, Habib Ahmed son of Saleem Ahmed, Muhammad Khan son of Ghulam Muhammad, Muhammad Shafi son of Fazal Haq, Muhammad Hafeez son of Siraj Din, Khadim Hussain son of Ghulam Hussain, Ijaz Ahmed son of Muhammad Younus, Muhammad Arif son of Babu Muhammad Hussain, Bashir Ahmed son of Noor Muhammad, Abdul Hameed son of Muhammad Bakhsh, Raja son of Muhammad Hussain, Riaz son of Sohawa, Taj Ali son of Musafar Khan, Saghir Ahmed son of Khalil Ahmed, Javed Iqbal son of Muhammad Ashraf, Bashir Ahmed son of Noor Muhammad, Fayyaz Hussain son of Shera, Mehmood Ahmed son of Umer Din, Abdul Razzaq son of a Abdul Rahim, Bilal Mustafa son of Qaiser Mustafa, Muhammad Yaqoob son of Allah Rakha, Muhammad Rafiq son of Muhammad Ali, Baber son of Wali Muhammad, Muhammad Isa son of Pir Bukhsh, Muhammad Amin son of Muhammad Sharif, Syed Abdur Rahim Kazmi, prepared site plan of the occurrence. Abdur Rashid son of Channan Din claimed that petitioner while in police custody, pointed out the place of explosion in his presence and Iftikhar Ahmed Khan (P.W.18) Medical Officer, issued death certificate of deceased.

10. The petitioner in his statement under section 342, Cr.P.C. denying the charge pleaded false implication and substitution. The learned trial Judge, on conclusion of the trial having found the petitioner guilty of the charge convicted and sentenced him as under:-- (a) Death penalty under section 3 of the Explosive Substances Act, 1908; (b) Death under section 302, P.P.C. for causing death of Miraj Din, Muhammad Siddique, Mehr Din, Mehmood Ahmed, Manzoor Ahmed, Bilal Mustafa, Muhammad Arshad, Shaukat Jan and Muhammad Ashiq. With a fine of Rs.20,000 and in default of payment of fine to undergo R.I. for one year. (c) R.I. for 10 years under section 307,. P.P.C. on each count for causing injuries to 54 persons with fine of Rs.10,000 and in default of payment of fine to under R.I. for six months.

3. Criminal Petition No 531 of 2003 (JP 119/2002) (F.LR.No.187 of 1990) The occurrence of bomb blast in this case had taken place at 3-10 p.m. on 30-8-1990 in Bhawana Bazar Faisalabad in which Muhammad Yasin, Marriam Riaz, Riffat and a child Irfan were killed and many others, were injured. The case under section 3 of the Explosive Substances Act, 1908 read with sections 302/307, P.P.C. was registered against the unknown culprits on the same day vide F.I.R. No. 187 of 1990 at Police Station, Kotwali Faisalabad. In consequence to the disclosure made by the petitioner in his confessional statement before a Magistrate at Lahore, for causing the explosion in question, he was sent up to face the trial before the Special Court established under Suppression of Terrorist Activities (Special Courts) Act, 1975 (XV of 1975) and was charged as under:-- "That you on 30-8-1990 were in possession of explosive substances which you exploded at 3-45 p.m. in Bahawana Bazar Faisalabad within the area of P.S. Kotwali, Faisalabad and thereby committed an offence punishable under section 3 of the Explosive Substances Act. Secondly on the same day, time and place as a result of this explosion caused by you maliciously four persons died on the spot which constitutes the offence punishable under section 302, P.P.C. Thirdly on the same day, time and place as a result of this explosion caused by you maliciously 23 persons received injuries and thereby committed an offence punishable under section 307, P.P.C. all the offences are scheduled offence and are triable exclusively by this Court."

11. The petitioner pleaded not guilty to the charge whereupon prosecution produced its evidence. Dr. Muhammad Aslam and Dr. Qaiser Abbas (P.Ws. 12 and 13) respectively medically examined the injured and also issued death certificate of the deceased. The eye-witnesses account was furnished by Muhammad Ilyas (P.W.I), Sheikh Muhammad Ijaz (P. W. 2), Muhammad Ijaz (P.W.3), Rana lja.: Hussain (P.W.6), Muhammad Akram (P.W.8) and Muhammad Ehsan (P.W.9). Muhammad Saleem (P.W.10) stated that he was running a shop in Bahawana Bazar, Faisalabad, near the place where the explosion was caused and shortly before the explosion, petitioner had visited his shop. He claimed to have identified the petitioner while he was brought by the police at the spot in custody and also subsequently in the Court. Rana Ijaz Hussain (P.W.6) also identifying the petitioner claimed to have seen him placing a bag near the place of occurrence before the bomb blast. Muhammad Khalid Zooq, Magistrate, Lahore Cantt. recorded confessional statement of petitioner and Major Ghulam Abbas of Military Intelligence Battalion, Lahore, after necessary investigation, produced the petitioner before the Magistrate for recording his confessional statement. Muhammad Sadiq Inspector Police (P. W.7) conducted the investigation.

12. The petitioner in his statement under section 342, Cr.P.C. denied the charge and taking the similar plea as was taken by him in the connected cases, pleaded that in fact one Manjeet Singh was arrested by the Army people who was subsequently let off and he was substituted as an accused. The learned trial Judge having found the petitioner guilty of the charges convicted and sentenced him as under:-- (i) Death under section 3 of Explosive Substances Act, 1908. (ii) Death under section 302, P.P.C. for causing death of Riffat Parveen, Irfan, Muhammad Yasin and Amanat Ali, with and a fine of Rs. 50,000 and in default of payment of fine to undergo R.I. for two years; (iii) R.I. for 10 years for causing injuries to 23 persons, with a fine of Rs.20,000 under section 307, P.P.C. and in default of payment of fine to undergo R.I. for one year.

13. The High Court in the separate appeals filed by the petitioner against his conviction and the sentences awarded to him by the trial Court in the above referred cases, taking no exception to the findings of his guilt maintained the convictions in all the cases and confirmed all the sentences awarded to him by the trial Court. The prosecution in addition to the judicial confession of the petitioner also relied upon the ocular account of the injured witnesses, the Magistrate who recorded his statement and the Army officer who initially interrogated the petitioner and produced him before the Magistrate. The petitioner however, subsequently retracted the judicial confession made by him before a Magistrate at Lahore in his statement under section 342, Cr. P. C. before the trial Court. Learned counsel for the petitioner challenging the admissibility of the judicial confession and the legality of conviction and sentence awarded to the petitioner on the basis of his confession raised the following contentions in support of these petitions:-- (a) The confessional statement of petitioner recorded under section 164, Cr.P.0 by the Magistrate was suffering from a serious legal infirmity as petitioner was arrested on 30-8-1990 and he was produced before a Magistrate by an officer of Military Intelligence Battalion on 8-9-1990 after keeping him in illegal custody for eight days. In support of his contention, learned counsel submitted that there was nothing on record to show that in the intervening period, the petitioner was produced before any Court and in view thereof, no sanctity could be attached to the confessional statement which was not admissible in evidence to be used for conviction. (b) The confessional statement of the petitioner was not recorded in any particular case and a general confession, would not be considered as legal evidence for conviction and in any case since the confessional statement of the petitioner was not recorded in accordance with the procedure provided in law and High Court Rules and Orders, therefore, it was bound to be ruled out of the consideration. (c) The truthfulness of the plea of substitution taken by the petitioner in his statement under section 342, Cr.P.C. in all the three cases as Sarbjeet Singh and Manjeet Singh are two different persons and petitioner is Sarjeet Singh whereas initially Manjeet Singh was taken into custody as Suspect but subsequently he was let off and petitioner was substituted as accused in the above bomb blast cases. (d) The identification of the petitioner claimed by the witnesses while he was in police custody was not an admissible evidence and his identification in the Court was not reliable as no identification parade of the petitioner was held in jail and he was frequently shown to the witnesses before and after commencement of the trial. (e) That except uncorroborated retracted judicial confession of the petitioner, there was no other evidence direct or circumstantial, to connect the petitioner with the crime for which he was convicted. In nutshell, learned counsel argued that petitioner was entitled to acquittal as the evidence on record was not at all sufficient to bring home his guilt beyond doubt.

14. Learned Assistant Advocate-General on the other hand, has contended that there was ample evidence of the identification of the' petitioner as real culprit in all the three cases and the two Courts having concurrently found the confessional statement of the petitioner voluntary, truthful and confidence inspiring, held him guilty therefore, there would be no reason to differ with the judgments of the High Court impugned in these petitions.

15. The modus operandi of commission of offence in the above referred three cases of bomb blasts was the same and the main evidence on the basis of which the petitioner was found guilty of the charges in all these cases, was his own confessional statement. The corroborative evidence produced by the prosecution to prove the facts relating to the happening of occurrences of bomb blasts in which a number of innocent persons were killed and injured, may not be independently, sufficient to prove the charge against the petitioner and establish his participation in the occurrence, therefore the essential question for consideration in this case would relate to the admissibility of the retracted judicial confession and its evidentiary value for the purpose of conviction. The Court should be very careful in ascertaining the true character of the confession for conviction and must consider the reasons given for retraction of the confession to find out the truth in such reason before making use of the confession for conviction.

16. This is settled law that a retracted confession either judicial or extra-judicial, if is found truthful and confidence inspiring and also qualifies the test of voluntariness, can be used for conviction without looking for any other sort of corroboration. The petitioner, an Indian citizen and being an illegal immigrant while was working as an agent of RAW (an Indian Intelligence Agency) in Pakistan was arrested as suspect and during the interrogation, disclosed that he was deputed to corm-nit terrorist activities in Pakistan and was involved in the bomb blast cases referred hereinbefore. The petitioner having disclosed his mission in Pakistan, showed his willingnesss to make a confessional statement, therefore, he was produced before a Magistrate, who after satisfying himself about the willingness and voluntariness of the petitioner to make the confessional statement, recorded his statement wherein he disclosed the manner in which he caused the explosion at Lahore and Faisalabad.

17. Mr. Khalid Zooq, Magistrate who recorded the confessional statement of the petitioner was examined as witness in each case and he categorically stated that he having observed all the formalities strictly in accordance with law and putting the essential questions to the petitioner that he was not bound to make any statement and having given sufficient time to him to think as to whether he should make a confessional statement or not recorded his statement in camera. The Magistrate having got the handcuffs of the petitioner removed and by sending all persons out of the Court room, before recording his statement, warned him that confessional statement could be used against him as evidence.

18. There is no cavil to the general rule that it is not prudent to base the conviction in a criminal case only on the strength of retracted confession without independent corroboration in necessary particulars and the Court is under obligation to inquire into all the material points and surrounding circumstances to satisfy itself regarding the truthfulness and voluntariness of the confession but it is not an inflexible rule that retracted confession cannot be made basis of conviction without independent corroboration rather the rule of corroboration is a rule of abundant caution which is insisted only to exclude any possibility of doubt qua the guilt of a person. The law is that a retracted confession can be legally taken into consideration, against the maker, if the confession is found true and voluntary and can also be used as sole evidence for conviction without any corroboration if the Court is satisfied about its voluntary character and truthfulness. This Court in The State v. Minhum (PLD 1964 SC 813) held as under:-- " Retracted confessions, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coerction or inducement. The question, however, as to whether in the facts and circumstances of a. given case the Court should, act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."

19. In the present case, it is established from the testimony of the Magistrate who recorded the confessional statement of the petitioner and Major Abbas who initially interrogated him that the judicial confession made by the petitioner was voluntary and true and the procedural defect, if any, in recording the statement stood removed by the question put by the Magistrate to the petitioner to the effect that the was not bound to make any statement and if a confessional statement was made by him, the same could be used against him as evidence. It is pertinent to point out that petitioner did not directly or indirectly take the plea before the' Court at any stage that the confession was involuntary.

20. The confessional statement of the petitioner was recorded on 8-9-90 and he for the first time in his statement under section 342, Cr. P. C recorded by the trial Court after a period more than one year of his making the statement before the Magistrate, retracted the confession and despite having sufficient opportunity in the intervening period to bring to the notice of Court that confession was not voluntary and true he did not orally or by moving an application inform the Court at any stage about his intention to retract the confession so much so, he did not retract the confession when the charge was framed by the trial Court and even in his statement under section 342, Cr.P.C before the trial Court he did not plead that his confession was obtained through torture, coercion, inducement or outside pressure. The Supreme Court of India in the case of Shankaria v. State of Rajasthan (AIR 1978 SC 1399) held a under:-- "Another circumstance which militates to some extent against the contention canvassed on behalf of the appellant, is that the confession was not retracted at the earliest. It was made on 14-6-1974. The trial commenced on 10-1-1975 when the charges were framed and read over to the accused. This was the earliest opportunity at which he could retract the confession, particularly when he was defended by an experienced counsel. But he did not do so on this occasion, though he pleaded not guilty to the charges."

21. The petitioner having the exclusive knowledge of the facts relating to the occurrences in which he caused bomb blasts, disclosed the same in his confessional statement, when he was brought before the Magistrate from the custody of an Intelligence Battalion of Pakistan Army at Lahore and not from the custody of police and since his involvement in the above cases came to the notice of police subsequent to the recording of his statement by the Magistrate, therefore, there would be no possibility of the confessional statement being tutored. It may be seen that the petitioner did not lodge any complaint of torture or coercion before the Magistrate or the trial Court at any stage and he also did not being to the notice of Magistrate or plead before the trial Court that prior to the recording of his statement, he was kept in illegal custody instead he denied to have made a confession or that he was produced before a Magistrate. It was held in Shankaria v. State of Rajasthan (AIR 1978 SC 1248) as under:-- "Where the accused, while retracting his confession, did not say that he was tutored by police to make the confession but only said that he made it under compulsion and threat and was false and a perusal of the confessional statement would show that prime facie there was nothing improbable or unbelievable in it; that it appeared to be a spontaneous account, studded with such vivid details about the manner of the commission of the crimes in question, which only the perpetrator of the crimes could know, and the confession received assurance in several material particulars from reliable independent evidence, mainly of circumstantial character, held the confession, coupled with the other evidence on the record, had unerringly and indubitably brought home the charges to the accused."

22. In view of the legal position discussed above, the mere denial of the petitioner to have not made a confession or the procedural defect in recording the statement as pointed out by the learned counsel would neither effect the admissibility of the confessional statement nor reduce its evidentiary value and similarly, the objection regarding the delay in recording the confessional statement would be of no significance as in such cases of terrorism, the availability of direct evidence would not be possible and if the confession was found true and voluntary, the delay would not be fatal.

23. There is no rule of criminal administration of justice that the Court having found the retracted confession voluntary and true, must also look for the corroboration and in absence of corroborative evidence conviction cannot be maintained. The retraction of a judicial or extra-judicial confession itself is not an infirmity to be considered sufficient to withhold the conviction because the evidentiary value of a confession is not diminished by mere fact that it was retracted by the maker at the trial and thus the independent corroboration from other source direct or circumstantial, cannot be insisted in every case as a mandatory rule rather the rule of corroboration is applied as abundant caution and in a case depending entirely on the confessional statement of a person or only of the circumstantial evidence, this rule is applied more cautiously. In the present case it stands proved from the testimony of the Magistrate, who recorded the confessional statement of the petitioner and Major Abbas of Intelligence Battalion, who after initial interrogation, produced him before the Magistrate that the confessional statement of the petitioner based on truth and he willingly and voluntarily made the confession without any outside pressure, influence or coercion therefore, by mere reason that he subsequently retracted the confession at the trial would not be sufficient to disbelieve the confession or doubt its truthfulness to exclude it from consideration. The oral testimony of the eye-witnesses, who were also victims of the occurrences as well as the circumstantial evidence of recovery of fake Pakistani I.D. Card from petitioner and the motive of terrorism through subversive activities to achieve the evil design of creating unrest in Pakistan as a result of which death of number of innocent persons was caused in brutal manner, would H sufficiently affirm the truthfulness of the confessional statement of the petitioner and not only reasonably but strongly suggest the involvement of the petitioner in the crime. The contention regarding the substitution of the petitioner has also no substance for the reason either the name of petitioner was Surjeet Singh or Manjeet Singh, he admittedly being an Indian national was arrested as suspect from the territory of Pakistan and on production before a Magistrate made full detail of terrorist activities, I committed by him in Pakistan, therefore, in these circumstances the substitution which is otherwise a rare phenomenon was not possible. The above facts coupled with the surrounding circumstances, would leave no room for doubt in our mind regarding the truthfulness of the confessional statement of the petitioner and his guilt.

24. This is correct that the confessional statement of petitioner was not recorded in any particular case and he having made disclosure of his involvement in the subversive activities in Pakistan in detail has made a confession containing detail of all the three occurrences for which he was separately tried and thus neither any prejudice in making his defence was caused to him in any case not the truthfulness and voluntaries of the confession would be effected by the reason that separate confession in each case was not made. The real question for determination would be whether the confession was voluntary and true which was answered in affirmative. Be that as it may, the question whether confession was true and voluntary or not is necessarily a question of fact and in a petition for special leave to appeal normally neither such question of fact is open to be raised before the Supreme Court nor the conviction and sentence based on concurrent finding of fact, is interfered unless it is shown that J such finding was vitiated by error of law or the conclusion of facts drawn at by the lower Courts was patently opposed to the well-established principle of judicial approach and criminal administration of justice which would be considered as wholly unjustified and perverse. It was held in Sarwan Singh v. State of Punjab (PLD 1957 SC (Ind.). 555 as under:-- "Prima facie, whether or not the confession is voluntary would be a question of fact and in an appeal by special leave, the Supreme Court would be reluctant to interfere with a finding on such a question of, fact unless it is satisfied that impugned finding has been reached without applying the true and legal tests in the matter." However, the real test is that confession must not only be voluntary but it must also be true and to ascertain its truthfulness it is necessary to examine and compare the confession with the rest of prosecution evidence to exclude any possibility or probability of any doubt qua its true character.

25. The petitioner undoubtedly was stranger to the witnesses but in view of the peculiar circumstances of the cases and his exclusive knowledge of the facts regarding bomb explosions mentioned by him in this statement, the question of his identification would be immaterial. The circumstances under which the occurrence took place, would suggest that the witnesses must have seen the petitioner before the explosions near the places of occurrences and could also conveniently identified him but the police did not arrange his identification parade and the witnesses claimed the identification of the petitioner in the Court on the basis of their memory. In addition to the confession made by the petitioner, an Indian national, his involvement in the occurrences, stood established by his exclusive knowledge of the facts disclosed by him in his confessional statement and the recovery of fake national identity card of a Pakistani with his photograph from his possession at the time of arrest, therefore, in presence of this unimpeachable character of evidence, the question of identification of petitioner, would be of no significance.

27. The learned counsel for the petitioner has not been able to convince us that the witnesses who sustained injuries in the occurrences and claimed identification of the petitioner in the Court had any personal motive to make a false statements against him or that they were not truthful and reliable witnesses. Learned counsel also has not been able to point out any element of bias or malice of the Army or police officer who interrogated the petitioner or the Magistrate who recorded his confessional statement. The careful analyses of prosecution evidence N would lead to an irresistible conclusion that none else but the petitioner was responsible for causing bomb blasts in these cases in which a number of innocent persons lost their lives and many sustained injuries. The petitioner an agent of RAW, an Indian Intelligence Agency, had committed the subversive acts of the nature secretly at the behest of a hostile country with the object and motive to destabilize the Pakistan by creating unrest, and causing harassment among the public through terrorism and in the above circumstances neither the direct evidence would be available nor it would be fair to expect such evidence in such a case of subversive activities to maintain the conviction. In view thereof, we do not find any substance in the contention of the learned counsel that in absence of direct evidence, it was not safe to convict the petitioner on the basis of his sole judicial confession which was subsequently retracted and award him capital punishment. We having minutely perused the; record with the help of learned counsel for the petitioner, have found that evaluation of the evidence made by the two Courts below was not suffering from any factual or legal infirmity of the nature which would suggest material defect in the conclusion regarding the guilt of petitioner concurrently drawn by the two Courts calling for interference of this Court and consequently, we would be of the opinion that the conviction and sentence awarded to the petitioner was well deserved. We find that petitioner was convicted by the trial Court only on one count in each case under section 302, P.P.C. for more than one murders and similarly under section 307, P.P.C. for causing injuries to a number of persons whereas he should have been convicted and sentenced separately for each murder in each case and the learned Judges in the High Court also omitted to take notice of this illegality but unfortunately, the State has neither filed any appeal in the High Court nor a petition in this Court in this behalf, we therefore, do not consider to go into this question at this final stage. The act of petitioner was not only an act of terrorism at the national level rather it was an act of international terrorism, the object of which was to disrupt and destroy the national life of the people of Pakistan and the petitioner by committing this heinous offence not only caused loss of life and property of innocent persons but also made an attempt to damage the national integrity and stability of Pakistan. In view of the above, the petitioner would not deserve any leniency in the matter of sentence and we having found no force in the argument of learned counsel that conviction on the basis of sole confessional statement of petitioner, could be considered as a mitigating circumstance for lesser punishment, uphold the judgment of the High Court. It may be pointed out that the question of sentence is always determined in the light of the nature of offence and the circumstances under which the offence was committed but in a case of terrorism or subversive activities, if the P charge stood proved, there would be no justification to withhold the maximum sentence provided under the law for such offences as the concept of lesser punishment on the basis of mitigation, has no place in such cases of terrorism.

28. For the forging discussion, we do not find any substance in these Petitions and the same are hereby dismissed. Leave is refused in all the three petitions. N.H.Q./M-300/S???????????????????????????????????????????????????????????????????? Leave to appeal refused.