1999 PLP 1744 (SCMR)

NASIR ASLAM ZAHID, J.

This 'appeal filed by convicts Naseem Akhtar alias Jalees and Muhammad Khalid son of Fazalur Rehman arises out of the judgment, dated 4-5-1998 of Division Bench of the Sindh High Court dismissing their criminal appeal and confirming their conviction and sentence of death awarded by judgment, dated 6-12-1994 of the trial Court, Special Court No. 1 (Suppression of Terrorist Activities), Karachi. We have heard at length the arguments of Sardar M. Ishaq Khan, Senior Advocate Supreme Court for the appellant, Raja Abdul Ghafoor, learned Advocate Supreme Court for the State and Mr. Ilyas Khan, learned Advocate Supreme Court for the complainant. With the assistance of the learned counsel, we have referred to the relevant record.

2. Leave was granted by order, dated 3-11-1998 as follows:

"Naseem Akhtar alias Jalees and Muhammad Khalid convicts seek leave to appeal against the judgment, dated 4-5-1998, of the High Court of Sindh, Karachi, whereby their appeal was dismissed and death sentence awarded to them by the learned Special Judge Court-I (Suppression of Terrorist Activities), Karachi, was confirmed. (2) Learned counsel for the petitioners, inter alia, contends that-- (a) the learned Judges of the High Court have disposed of appeal before them without appraising the evidence in its true perspective; (b) that the Courts below ignored the principle of law that the items of evidence requiring corroboration cannot corroborate another such item; and (c) that they overlooked the fact that the petitioners had remained in unlawful custody from 11-8-1994 to 18-8-1994 without remand from any Court and the alleged retracted judicial confessions recorded on 18-8-1994 had no legal sanctity." Leave to appeal is granted to consider whether principles governing appraisal of evidence laid down by this Court were correctly followed by the Courts below to ensure safe administration of justice. " The facts have been narrated in the judgment of the trial Court as follows:-- "The two accused persons Muhammad Khalid and Naseem Akhtar alias Jalees stand charged for kidnapping for ransom and murder of minor boy Anas Fareed. The case of the prosecution is that, the minor Anas Fareed son of Fareeduddin Siddiqui who is related to the accused persons found missing from outside his house where he had gone to play on 19-7-1994. After making search for the boy the father of the boy Fareeduddin Siddiqui lodged a report on the same day at about 9-45 p.m. at the Gulberg Police Station which was entered into the daily diary. On 21-7-1994 Fareeduddin Siddiqui received a telephone call at his house and the caller informed that his son Anas Fareed was with them. On the same day statement of P.W.3 Sohail Rais Siddiqui, was recorded under section 154, Cr.P.C. which was subsequently converted in the F.I.R. Thereafter, in the words of P.W. Fareeduddin: 'Thereafter, I contacted C.P.L.C. at about 10 or 11, p.m. on the same night. They advised me to record the dialogue between me and the unknown person on telephone in a audio cassette. And also my telephone was kept under observation. The other set of my telephone was kept for one way call. The unknown persons were talking on phone for me from time to time and they were demanding ransom amount of Rs.45 lacs for return of my son. It was continued for about 4/5 days. The bargaining was carrying on and the demand was reduced to 30 lacs. One 6-8-1994 it was about 10 p.m. when a police mobile consisting of S.H.O. and their subordinate reached, at my house. They had also brought the two, accused persons who were under handcuffs and the S.H.O. informed me that both of them were the real culprits who had abducted my son Anas Fareed on motor bike. The accused Khalid present in Court is son of my aunt while co-accused Naseem is the nephew of my another aunt. Accused Khalid used to reside in our Mohallah near to my house. On my enquiry both the accused admitted their guilt and asked me for forgiveness and that they have done this due to temptation of money and abducted my son. On my enquiry about my son both the accused persons told me that after abducting my son they had murdered him immediately. " It -is the case of the prosecution that both the accused namely Muhammad Khalid and Naseem Akhtar a Jalees led the police party while in custody and pointed out the place where the dead body was found lying. They also got recovered the handkerchief which was used for the commission of the offence. The motor-cycle used for transporting the deceased boy by accused Nasim Akhtar was got recovered from the house of accused Khalid who had borrowed the same from P.W. Anwar. Both the accused also pointed out the place from where the deceased boy was picked up. Finally on 18-8-1994 both the accused made confession before a Magistrate, who remanded them to judicial custody and the challan was submitted in the Court. Prosecution examined P.W. I Exh.3 Muhammad Ibrahim Qureshi who is ACM-III Karachi (Central) who recorded the confession of both the accused P.W. 2 Anwar Exh.4 who claimed to be the owner of the motor-cycle which was borrowed by accused Khalid and was recovered from the house of the said accused on his pointing. P.W. 3 Sohail Rais Siddiqui Exh.5 whose statement under section 154, Cr.P.C. Exh. 5-A was recorded on 21-7-1994 and who is the cousin of the deceased boy. He, is also Mashir of the memo. of the place from where the boy was picked up which was prepared on 21-7-1994. He is also Mashir of the recovery of the dead body of the deceased boy which was recovered as a result of both the accused leading them to the place of the murder situated in an under-construction house Surjani Town, Karachi from where the dead body of the deceased boy was recovered. He also produced the photographs of the deceased boy. Police also prepared inquest report before him. On the day of 'Soyam' of the deceased boy tape consisting the recording of the conversation of the accused with that of the father of the deceased was produced before the police which was taken into possession before him. P.W.4 Exh.6 lieutenant Khurrain Qamar who is also a relative of the accused as well as of the complainant. He has also corroborated the prosecution story. P.W.5 Exh.8 is Dr. Syed Saeed Haider Kazmi who performed the post mortem on the body of the deceased boy and produced the post-mortem report. P.W.6 Exh.9 Muhammad Jahangir Khan is a Mashir of the arrest of accused Khalid on 6-8-1994 from near ' Ziauddin Hospital. Accused Khalid then led the police party to the house of his partner co accused Naseem Akhtar alias Jalees who was arrested. On 8-8-1994 police secured the motor-cycle from the house which was pointed out by accused Khalid. P.W. 7 Exh.10 is Fareeduddin Siddiqui, the father of the deceased boy who corroborated the prosecution story and produced the audio cassette containing the recording of the conversation between him and that of the kidnappers. P.W.8 is Muhammad Fayyaz Exb.11 is A.S.I. of Police Station Gulberg who recorded the 154, Cr.P.C. statement of Sohail Rais at his house and the statement was then incorporated by him in the 154, Cr.P.C. book as F.I.R. Finally the prosecution examined Abdul Rasheed the S.H.O. and Investigating Officer of the case as P.W.9 Exh. 13. "

3. According to the trial Court, in the case, the following points required determination- (a) Whether Anas Fareed was murdered as a result of strangulation? (b) Whether both the accused persons in active connivance and common intention of each other kidnapped the boy deceased Anas Fareed for the purpose of obtaining ransom? Whether after kidnapping the boy the accused persons murdered the boy? (d) If the answer is in the affirmative, what the sentence should be? Trial Court's findings were in the affirmative on the first three points. Both the appellants were found guilty of murder of minor Anas Farced and both the appellants were awarded capital sentence of death. As observed, by the impugned judgment dated 4-5-1998, Sindh High Court has dismissed the appeal filed by the appellants and death sentence awarded to them has been confirmed.

4. There is no eye-witness of the incident, Prosecution built up its case against the two appellants on the judicial confessions of the appellant, which were retracted at the trial, and the following other pieces of evidence:-- (i) Extra-judicial confessions of the two appellants which were retracted at the trial; (ii) leading to and pointing out of the place of kidnapping by the appellants: (iii) leading to and pointing out by the appellants of the place from where dead body of the deceased was found and recovered; (iv) leading to and pointing out the place from where the handkerchief, used in the strangulation of the deceased was recovered; (v) leading to, pointing out and recovery of the motor-cycle from the house of accused Khalid on which, according to the prosecution. the deceased was kidnapped; (vi) arrest of appellant Khalid from the telephone booth from where, according to the prosecution, the appellants used to ring up the family of the deceased for claiming ransom; (vii) audio cassette in which the conversation between the appellants and the members of the family of deceased was recorded pursuant to Instructions given by the Citi7en Police Liaison Committee (CPLC): (viii) medical evidence of P.W.5 Dr. Syed Saeed Hyder who performed post-mortem of the body of the deceased confirming that the deceased died on account of strangulation.

5. The main piece of evidence against the two appellants were their respective judicial confessions recorded by P.W. 1 Ibrahim Qureshi, Additional City Magistrate. Karachi Central. The judicial confessions were retracted at the trial by the two appellants. These judicial confessions were accepted as admissible by the trial Court as well as the High Court and became basic evidence of the prosecution case. Prosecution also relied on extra-judicial confessions, circumstantial evidence, recoveries and medical evidence.

6. Sardar Muhammad Ishaq Khan, learned counsel appearing for the two appellants, has raised the following contentions on merits, on the inadmissibility and irrelevance of the various pieces of evidence against the appellants and also on other deficiencies and weaknesses in the prosecution case:

(i) Extra-judicial confessions relied upon by the prosecution are not admissible in evidence as the same were made while the appellants were in custody of the police. Additionally, according to learned counsel, the said confessions having been recorded jointly were inadmissible and in any case these were not put to the appellants while their statements were being recorded under 342, Cr.P.C. (ii) The audio cassette in which allegedly the conversation between the appellants and P.W.7 Fariduddin Siddiqui, father of the deceased, was allegedly; recorded does not prove that the voices in the said cassette were that of the appellants. It was also pointed out that on 6-8-1994 the police had gone to the house of deceased's father but on that day the audio cassettes were never produced, whereas it was produced after two days on 8-8-1994 whiCh fact by itself raises a doubt as to the genuineness of the audio cassette. It was also pointed out that P.W.7 Fariduddin mentioned in his evidence before the trial Court that he had been told that appellant Khalid was capable of changing his voice and this was to justify that the voice of Khalid on the telephone was not easily recognised by P.W.7. According to learned counsel this was an intentional mala fide improvement by P.W.7 as, when confronted, it came out that in his statement under section 161, Cr.P.C. that he never mentioned about the change of voice. In the circumstances, according to learned counsel no reliance could be placed on the audio cassette. (iii) As regards the disclosure about the dead body of the deceased, it was submitted that this disclosure while in custody was a joint disclosure and, therefore, the recovery of the dead body on the basis of such disclosure could not be used as evidence against either of the appellants. Regarding leading the police and marginal witnesses to the place where the dead body was lying in an under-construction house in Surjani Town, pointation of the dead body and its recovery, it was submitted were all, according to the prosecution evidence itself, joint, that is, by both the appellants together. It was contended by learned counsel for the appellants that all these joint disclosure, leading, pointation and recovery are inadmissible against either of the two appellants and for this proposition reliance was placed on the following judgments:-- (a)Amir Ali v. State (PLD 1975 Kar. 753). (b) Khalas Khan v. State (1975 PCr.LJ 172). (c)Abdul Ghani v. State (1976 PCr.LJ 1462). (d) Naeem Akhtar, v. State (1993 PCr. LJ 769). (e) Abdul Khaleem v. State (1992 PCr.LJ 1314). (iv) As regards the recovery of handkerchief which, according to the prosecution, was used by the appellants in strangulating the deceased, learned counsel submitted that recovery of such handkerchief was also made jointly at the instance of the appellants, and therefore, inadmissible. It was further pointed out that the said handkerchief had been taken as a weapon of offence by the prosecution but it was not sent to the Chemical. Examiner and the same could not be used as a corroborative piece of evidence against the appellants. (v) Recovery of the motor-cycle on which the deceased was kidnapped and was taken to the place where he was murdered was also at the joint pointation of the appellants and, therefore, according to learned counsel, was inadmissible. Additionally, it was submitted that there is no evidence that any one saw the deceased or either of the appellants riding that motor-cycle. (vi) Pointation of the place of kidnapping, according to learned counsel, is neither admissible as it was joint pointation nor relevant as it was not a place which was only known to the appellants. (vii) As regards judicial confessions it was first submitted that these was jointly recorded and, therefore, were inadmissible; secondly it was very vehemently contended that appellants had been taken into police custody on 6-8-1994 and remand was obtained till 11-8-1994 whereafter the remand was refused and from -11-8-1994 to 18-8-1994, when the confessions were recorded before the Magistrate, both the appellants were in unlawful custody of the appellants and, therefore, no reliance could at all be placed on such confessions. According to learned counsel, in these circumstances the two confessions are basically illegal and of no consequence. Further according to learned counsel, in the judicial confessions, there are errors and omissions in their recording which clearly show that the Magistrate was not cautious in recording the same which were recorded haphazardly. It was then pointed out that there are material contradictions between the two confessions on account of which no reliance should have been placed on the confessions by the Courts. It was also argued that there was delay of 14 days in recording the judicial confessions which affected their reliability. In support of his attack on judicial confessions, counsel relied on the following judgments:-- (a) Naseem Akhtar v. State (1993 PCr.U 769). (b) State v. Kamal Khan (1993 SCMR 1378). (c) Azeem Shah v. State (PLD 1987 Quetta 96). (d) Hamzo v. State (PLD 1960 Kar. 817). It was pointed out that the other evidence of the prosecution comprising statements of Sohail Siddiqui (cousin of the deceased), P.W.7 (father of the deceased) and Lt. Khurram Qamar (cousin of the deceased) was interested testimony and required independent corroboration. According to learned counsel even if the aforesaid pieces of evidence were admissible in evidence, all different pieces of evidence in this case are tainted in character and it is now well-settled principle of law that one tainted piece of evidence cannot be corroborated by another tainted piece of evidence. According to learned counsel prosecution miserably failed to make out any case against the appellants.

7. Raja Abdul Ghafoor, learned, Advocate Supreme Court for the State, supported the conviction and sentence of the two appellants. According to learned counsel for the State, the judicial confessions were admissible in evidence and were rightly relied upon by the trial Court as well as the High Court. According to learned counsel, judicial, confessions were corroborated by medical evidence and other pieces of evidence which were all admissible in evidence.

8. Mr. Muhammad Ilyas Khan, learned counsel for the complainant also supported the prosecution case submitting that on 15-8-1994 Magistrate had granted further remand till 18-8-1994 and, therefore, when the judicial confessions were recorded, both the appellants were in lawful custody of the police and after recording of their judicial confessions the Magistrate sent them to jail. According to learned counsel for the complainant, till 11-8-1994, the appellants were in custody of the police on remand from a Magistrate; 12-8-1994 and 13-8-1994 were weekly holidays and 14-8-1994 was a public holiday, and immediately on reopening of the Courts after the 3 holidays, on 15-8-1994 remand was obtained from the Magistrate till 18-84994. Even otherwise according to learned counsel for the complainant, if for the period from 12-8-1994 to 14-8-1994 (3 days which were holidays, 12th to 13th August, 1994 being Thursday and Friday then weekly holidays and 14-8-1994 being a public holiday) there was no remand from any Magistrate, such lapse on the part of the police was curable under section 537, Cr.P.C. As regards defects in recording the confessions by the Magistrate, it was submitted that the said defects were not material and reliance was placed on the judgment of this Court in the case of Muhammad Yaqoob v. State (1992 SCMR 1983). As regards delay of 12 days in recording the judicial confessions (appellants having been arrested on 6-8-1994 whereas their confessions were recorded on 18-8-1994), according to learned counsel, such delay was not fatal and did not affect the admissibility or veracity of the judicial confessions. Reliance was placed on the following judgments as regards the question of delay in recording the confessions:-- (a) Sharifuddin Pirzada v. Sohbat Khan (PLD 1972 SC 363) (b) Kadir Bakhsh v. State (PU 1985 Cr.C. (Quetta) 357) (c) Munir Ahmed v. State (1995 MLD 1126) On the question of corroboration, reliance was placed by Mr. Muhammad Ilyas Khan, learned counsel for the complainant, on the case of Gul Jamal v. State (NLR 1980 Cr. (S.C.) 357 and Zakir Khan v. State (1995 SCMR 1793).

9. In reply Sardar M.Ishaq Khan, Senior Advocate Supreme Court submitted that the judgments cited by learned counsel for the complainant were either irrelevant or distinguishable. It was emphasized that the main reason for taking further remand by the police was apparently to get a few more days which could be used for putting pressure and coercion upon the appellants for obtaining the confessions which were recorded on 18-8-1994.

10. We may first consider the extra-judicial confessions of the appellants. Learned counsel for the appellants is correct in his submission that said extra-judicial confessions are inadmissible in evidence as the same were made by the two appellants while they were in the presence of police officer and in police custody and also admittedly handcuffed. Article 39 of Qanun-e-Shahadat Order, 1984 (section 26 of the repealed Evidence Act, 1872) may be referred. No reliance could also be placed on such pieces of evidence as they were not put to the appellants while their statements under section 342, Cr.P.C. were being recorded. Following judgments can he referred for this principle:

(i) Din Muhammad v. The Crown (1969 SCMR 777). (ii) Munawar Hussain v, The State (1991 SCMR 1601) (iii) Rasool Muhammad v. Asal Muhammad (1995 SCMR 1373)

11. The basic evidence in this case against the appellants are the judicial confessions both made on 18-8-1994 before P.W.1 Magistrate Muhammad Ibrahim Qureshi, which were retracted at the trial. Before we may refer to the errors in the recording of the confessions and other defects and contradictions therein pointed out by Sardar Ishaque Khan.. counsel for the' appellants, the following contentions regarding inadmissibility of the confessions may be dealt with:-- (a) Delay of 12 days in recording confessions

appellants were arrested on 6-8-1994 whereas their confessions were recorded on 18-8-1994. Delay in recording confessions by itself is no longer considered fatal to their admissibility. Reference in this behalf can be made to the following judgments of this Court:-- (i) Sharifuddin Pirzada v, Sohbat Khan (PLD 1972 SC 363) (ii) Muhammad Ismail v. State (1995 SCMR 1615) Delay is not the crucial factor. The trial Court has to assess whether the confession is voluntary and true and not the result of any pressure, threat or inducement. In this case, delay of 12 days in recording the confessions does not render them inadmissible. (b) The other objection to the admissibility of the appellants' confession was that these were made jointly. Perusal of the record does not support the assertion of learned counsel, The confessional forms show that first Nasim's confession was recorded and thereafter Khalid was called and his confession recorded. Nasim was earlier given time from 9 to 10 a.m. for reflection and Khalid was later given time from 10-30 to 11-30 a.m. Examination-in-chief of the Magistrate (P.W. 1) confirms that the confessions were not recorded jointly or in the presence of both but first of Nasirn and then of Khalid. This was further reiterated in his cross-examination as follows;-- "It was a Chamber where I recorded the confessional statement of both the accused. I allowed accused Naseem to sit in my Chamber while accused Muhammad Khalid allowed to sit out of my Chamber in a place in-between my office and Chamber. The police was out of my office. " The contention that confessions of the two appellants were jointly recorded or in presence of each other is not home out from the record. The contention is without substance. (c) It was then contended that when appellants' confessions were recorded, they were in unlawful custody of the police without any remand order in existence. It was stressed that remand had been obtained till H-8-1994 which was not extended. According to learned counsel this patent illegality renders the confessions illegal and inadmissible or, in any case, casts a doubt upon their veracity. Record is available and it shows that on 11-8-1994 the two appellants were produced before the Magistrate (P.W. 1) for seeking extension of remand till 20-8-1994 on which he passed the following orders:- 'Where is the first police remand order?' (Sd.) 11-8-1994 ACM-III" 12th and 13th August, 1994 (Thursday and Friday were weekly holidays) during that period and 14th August, 1994 was a public holiday (according to learned counsel for the complainant and as noted in the impugned judgment of the High Court and not controverted by Sardar Ishaque Khan). On 15-8-1994, in the remand report it was pointed out that on 11-8-1994 when appellants were produced before the Magistrate, on account of copy of earlier remand order (dated 7-8-1994) not being available with the police, further remand was not granted by the Magistrate. A request was made for remand from 15-8-1994 to 20-8-1994 on which the following order was passed by the Magistrate (P. W. 1):

"Accused are present in P.C. and do not complain for maltreatment by police. Remanded to P.C. up to 18-8-1994 for investigation. (Sd.) 15-8-1994 Copy to Hon'ble D& SJ(c) for information. (Sd.) 15-8-1994." From the record it does not appear that appellants were in unlawful custody of the police from 11-8-1994 to 18-8-1994 when their confessions were recorded. First remand order was passed on 7-8-1994; appellants were remanded into police custody till 11-8-1994; they did not complain of maltreatment when asked by the Magistrate on 7-8-1994. Then there is a gap of 3 days i.e. 12th, 13th and 14th August, 1994. An explanation (holidays and copy of remand order dated 7-8-1994 not being available which was asked for by the Magistrate on 11-8-1994) is available which may not be formal and legal explanation but there is some explanation which shows that there was no mala fide on the part of the police. Then the appellants are again produced before the Magistrate and remand is obtained up to 18-8-1994 when the appellants are produced before the Magistrate for recording their confessions which are recorded whereafter the Magistrate remands them to jail custody. In these circumstances it cannot be said that appellants were in unlawful police custody from 11-8-1994 to 18-8-1994 when their confessions were recorded.

12. As regards the deficiencies and illegalities in recording of and the defects and contradictions in the confessions, pointed out by Sardar Ishaq Khan, learned counsel for the appellants, we may refer to the Exhs. 3-C(Naseem Akhtar's confession), and 3-D (Khalid's confession), which are as follows:-- Exh.3/c "Crime No.286/94 under section 364-A/34 read with 302, Qisas and Diyat. Form of proceedings in confession of accused persons. (Section 164 of the Code of Criminal Procedure) In the Court of the Additional City Magistrate Court No.III KYC Central. The accused Naseem Akhtar Urf Jalees is brought by Inspector Abdul Rashid Khan of Gulberg Police Station before me at my Court at 9-0 a.m. to have his confession recorded. A letter is given to me dated 16-8-1994 from the S.H.O. Gulberg which is attached to the record. The offence is alleged to have been committed at Police Station Gulberg on 19-7-1994 at 4-00 p.m. and the accused is said to have been arrested at P.S. Gulberg on 6-8-1994 at 8-0 p.m. by S.H.O., Police Station Gulberg. The accused is placed in custody of Court staff and the police is directed to leave the premises. The accused is warned that he is not bound to make a confession and that any statement be makes will be taken down in writing and may thereafter be used against him. He is then allotted time for reflection from 9-0 am to 10 a.m. and during this period, the investigating police have had no access to him. The accused is again brought before me in open Court/not in open Court but in my chamber because it is more appropriate. I have satisfied myself that there is no policeman in Court/Chamber or in any place where the proceeding could be seen or heard. The accused is asked if he is disposed to make a confession of his own free will. He replies as follows:-- The body of the accused is examined with his consent and it is found that: The accused is asked details as to the length of time during which and the places where he has been in the custody of the notice. He replies as follows:-- The accused is examined as follows, in order to ascertain whether he is disposed to make a confession of his own free will or under any inducement, threat or promise. (The following and such other questions as may appear necessary to be asked)

(Every question and every answer to be recorded in full). Question:--Have you been given any inducement, threat or promise by the police or any one.1,olse which induces you to make this confession? Answer.-- Question--Have you been beaten, tortured or maltreated by the Police? Answer.-- Question.--Has any family member of yours, male or female, been sent for 'by the Police in order to pressurise you to confess? , Answer. -- Question.--What are the circumstances which are inducing you to confess? Answer- Question-Are you aware that I am a Magistrate, and if you make a confession I am required to record it? Answer. - Question.--Are you aware that if you make a confession, it will be used against you at your trial and on its basis you may be convicted and sentenced for committing the offence of

? Answer- Question. --What have to say? Answer, (Sd.) ACM 18-8-1994. (Stamp of Magistrate) I have explain ed to (Naseern Akhtar) that he is not bound to make confession and that if he does so, any confession he may make, that be used as evidence against him and I believe that the confession was voluntarily made. It was taken in my presence and hearing and was read over to the person making it and admitted by him to be correct and it contains full and true account of statement made by him. (Sd.) ACM-III -C 18-8-1994 The accused, after his confession has been recorded by me is forwarded to Central Jail. Mark of identification of accused (Sd.) 18-8-94 (Stamp of Magistrate) Place or camp ExhA/D "Crime No. 286/94 Unser section 364-A/34 read with 302, Qisas and Diyat Form of proceeding confession of accused persons (Section 164 of the Code of Criminal Procedure) In the Court of the Additional City Magistrate Court No. III KYC. C. The accused Muhammad Khalid is brought by Inspector Abdul Rashid Khan of Gulberg Police Station before me at my Court at 9.00 a.m. to have his confession recorded. A letter is given to me dated 16-8-1994 from the S.H.O. Gulberg which is attached to the record. The offence is alleged to have 6een committed at Police Station Gulberg on 19-7-1994 at 4-00 p.m. and the accused is said to have been arrested at Police Station Gulberg on 8-1994 at 8-00 p.m. by SHO-Police Station Gulberg The accused is placed in custody of Court staff and the police is directed to leave the premises. The accused is warned that he is not bound to make a confessiom and that any statement he makes will be taken down in writing and may thereafter be used against him. He is then allotted time for reflection 'from 10-30 a.m. to 11-30 a.m. and during this period, the investigating police have had no access to him. The accused is again brought before me in open Court/not in open Court but in my chamber because it is more appropriate. I have satisfied myself that there is no policeman in Court/Chamber or in any place where the proceedings could be seen or heard. The accused is asked if he is disposed to make a confession of his own free will. He replies as follows:-- The body of the accused is examined with his consent and it is found that The accused is asked details as to the length of time during which and the places where he has been in the custody of the police. He replies as follows:-- The accused is examined as follows, in order to ascertain whether he is disposed to make a confession of his own free-will or under any inducement, threat or promise. (The following and such other questions as may appear necessary to be asked):-- (Every question and every answer to be recorded in full) Question.--Have you been given any inducement, threat or promise by the police or anyone else which induces you to make this confession? Answer.-- Question. --Have you been beaten, tortured or maltreated by the Police? Question.--Has any family member of yours, male or female, been sent for by the Police in order to pressurise you to confess? Answer.- Question--What are the circumstances which are inducing you to confess? Answer.-- Question.--Are you aware that I am a Magistrate, and if you make a confession I am required to record it? Answer Question.--Are you aware that if you make a confession, it will be used against you at your trial and on its basis you may be convicted and sentenced for committing the offence of

? Answer:- Question:-- What have to say? Answer:-- After the text of the confession of appellant Khalid, there is the certificate by the Magistrate, P.W. I Ibrahim Qureshi.

13. It has been argued by learned counsel for the two appellants that the confessions had been haphazardly recorded by P. W. 1 who was also not cautious in recording the same. However, from the judicial confessions (reproduced hereinabove) we find no substance in the submission. We find from Exh. 3/C and Exh.3/1) that the confessions had been recorded on the prescribed pro formas and, except for one question for which no answer was recorded by P.W. 1, the Magistrate, answers to all other questions in the pro formas were recorded by him. The question to which no answer was recorded in the two confessions is that whether the accused was aware that if he were to make a confession, the same would be used against him at his trial on the basis of which he may be convicted and sentenced. However, we find that in the certificate recorded at the end of both the confessions, in his own handwriting, the Magistrate has inter alia confirmed that he had expressed to the accused that they were not bound to make confessions and if they did, the same could be used as evidence against them. It was then submitted that no answer had been recorded to the question as to what time during which and the places where the accused had been taken while in custody of the police. But ' we find from the perusal of the confessions that answers in both the confessions to the said questions are given and the same are:-- Learned counsel for the appellants had also pointed out certain contradictions between the two confessions. The date of the offence is 19-7-1994. In his confession, Naseem Akhtar gave the date as 17-7-1994 at two places whereas in Khalid's confession the correct date of 19-7-1994 is given. The said difference in the date by Naseern Akhtar is not such an error or slip which affects the veracity or truthfulness of the confession of Naseem Akhtar. As regards the strangulation of the deceased boy, in both the confessions, it is mentioned that both the appellants had strangulated him by pressing his neck till he died. Naseern Akhtar mentioned that they were pressing the neck of the deceased for-half an hour whereas Khalid does not mention the time. Then, according to the learned counsel, Naseem Akhtar does not mention about the use of handkerchief whereas Khalid mentioned about the use of handkerchief by Naseem Akhtar in the strangulation of the deceased. After carefully scrutinizing the confessions made by the appellants, we find that in all most all respects the confessions tally with each other with very minor variations which do not cast any doubt on the prosecution version. Perhaps, if the two confessions had been exact copies of each other, eve .. ... . extent of all minor details, there might have been a question mark as to why it was so. The High Court has referred to a judgment of this Court in the case of Muhammad Yaqoob v. State (1992 SCMR 1983) which has been relied upon by learned counsel for the complainant. One of the principles reiterated in the said judgment is that any lapse on the administrative side on the part of a Magistrate recording a confession may not be fatal as to the evidentiary value of such confession provided the Court is satisfied that the lapse on his part has not, in any way, adversely affected the voluntariness or truthfulness of the confession. We do not find any significant or material lapse on the par' of in recording the confessions of the two appellants. One or two minor omissions cannot be termed as lapses to affect the evidentiary value of the said confessions. It was not established that the confessions had been obtained or tendered on account of any pressure, influence or coercion from any quarter. No suggestion was made to P.W.1, the Magistrate, that the confessions had been obtained under pressure, influence or coercion, except for the general suggestion that the confession had been recorded by him under the dictation of the Investigating Officer which was denied by P.W.

1. As regards P.W.9, Inspector Abdul Rashid, then S.H.O. Police Station Gulberg, in his cross-examination, apart from a general question that the police had maltreated the appellants, no specific questions were put regarding any torture or maltreatment. Similarly in their respective statements under section 342, Cr.P.C. the appellants have made general allegation about maltreatment. No suggestions were made to prosecution witnesses about where, how and by whom the maltreatments took place.

14. In this case, the deceased boy disappeared on 19-7-1994, on which a report was made at the police station about his disappearance by the father of the boy. Till 6-8-1994, there was no information about the whereabouts of the deceased except that telephone calls for ransom were received by Fariduddin, father of the deceased. It is only after the arrest of the two appellants on 6-8-1994 that the body of deceased was recovered. The two appellants are closely related to Fariduddin, father of the deceased, being his cousins. If he wanted to implicate them falsely, he could do so before their arrest or before the body of the deceased was found but this was not done by him. He never suspected them. He did not implicate them falsely. He had no enmity with the appellants. The fact that the body was recovered on 6-8-1994, after the arrest of the appellants is confirmed from the fact that the 'Soyem' of the deceased was held on 8-8-1994, which fact is mentioned in the evidence of witnesses and which was not denied. There is nothing on the record that anyone else knew about the place where the body of the deceased was lying. No suggestion was made to prosecution witnesses that the body was discovered earlier. As observed, it was only after their arrest that the body was discovered and recovered. The trial Court found the confessions to be truthful and having been made voluntarily by the two appellants without any pressure, influence or coercion from any quarter which finding has been confirmed by the High Court. We find no infirmity or error in the findings of the two Courts and the background and circumstances mentioned hereinabove also confirm the prosecution case about the veracity and truthfulness of the said confessions and the fact that they were made voluntarily.

15. In the case of Muhammad Yaqoob v. State (supra), it was observed that the retracted confession of an accused is sufficient to sustain his conviction for a capital sentence if the Court is of the view that the same is voluntary and is true but, as a rule of prudence the same should not be acted upon unless corroborated by some other reliable evidence in material particulars. As a pure question of law, it could be said that conviction for a capital offence can be sustained on the basis of a retracted confession only, provided it is voluntary and true. However, as observed, as a rule of prudence the Courts look for corroboration by other reliable evidence. In the present case, the High Court has relied upon the following pieces of evidence providing corroboration in the retracted confessions of the two appellants:-- (a) Recovery of the handkerchief (b) Recovery of motor-cycle (c) Pointation of the place of kidnapping. (d) Recovery of the dead body of the deceased at the pointation of the appellants. (e) Arrest of appellant Khalid from telephone booth from where according to the prosecution calls were made to the father of the deceased claiming ransom. (f) Audio cassette containing conversation between the appellants and Fariduddin. (g) Medical evidence The High Court in the impugned judgment, despite the fact that the pointation and the aforesaid recoveries were joint, accepted the same as admissible distinguishing various judgments cited before the High Court for the proposition that joint pointation and joint recoveries are inadmissible in evidence. Judgments cited by learned counsel for the appellants support the proposition that joint pointation and joint recoveries are not admissible. However, we do not consider it necessary in this case to decide this question as, according to us, other reliable evidence is available for corroborating the retracted judicial confessions of the two appellants. We may, however, observe that in some other appropriate case the question regarding admissibility or otherwise of joint or simultaneous pointation and recoveries can be decided by an authoritative judgment of this Court.

16. Reference may now be made to judgment of this Court in the case of Gul Jamal v. State (NLR 1980 Cr. (SC) 357). In that case also there were 2 appellants before this Court in a murder case. After their arrest, the appellants led the S.H.O. to a place where they had washed the blood from the tonga and discarded the clothes of the deceased and to a place at a distance of 100 yards further from where a torn Shalwar and a piece of the shirt of the deceased were secured. Both the appellants led the S.H.O. to a house from where one of the appellants, Gul Jamal had picked up a blood-stained dagger. An objection had been raised regarding joint pointation and recoveries and in this context it war. observed as follows:-- "it was contended that the joint recoveries should not he accepted as pieces of corroboratory evidence for such evidence cannot be regarded as evidence of conduct under section 8 of the Evidence Act. In evaluating this submission the weight of authorities have judged this piece of evidence on the footing of a statement made to a police officer under section 27 of the Evidence Act which leads to the discovery of a fact and for reference sake we may here cite Faqira and others v. Emperor (AIR 1929 Lah. 665) and Rafiqucuddin Ahmed and others v. Emperor (AIR 1935 Calcutta 184). In this connection it will be of relevance to refer to Minor's Commentary on the Law of Evidence, 1974 Edition, at page 62 of his book: -- 'If, however, two or more persons are alleged to have pointed out a relevant fact, it must be shown who pointed out the fact first; and if that is not done, the evidence of pointing out will not be admissible against any one of the accused. Where no material fact is discovered, and the accused merely points out places where certain incidents took place, the evidence Of Pointing out will not be admissible. Of course, the fact that the accused Produced stolen property or any instruments used in the commission Of the offence and always be proved as a relevant fact under, as well as apart from, the present section.' The reason for exclusion is not far to seek, for section 27 of the Evidence Act renders a statement admissible if it leads to the discovery of a fact. Similarly, Explanation I to section 8, also makes statements which accompany and explain facts other than the statements also admissible and since the line to be drawn between the admissibility of these statements under section 27, and Explanation 1 to section 8 is thin the courts had been zealous to guard against the admission of statements which amount to confessions even though they accompany and explain acts and, therefore, they have held section 8 to be read subject to sections, 25, 26 and 27 of the Act. Further, for drawing the inferential conclusion, the Courts have insisted that the statements leading to the discovery of incriminating articles should be precise and if the fact is discovered at the behest of two persons then it should be clear as to who gave the information first either by words of gesture so as to fasten the discovery of the incriminating article with his conduct in terms of Explanation I to section

8. However, a distinction has to be drawn where, without making a statement an accused leads to a place where he had discarded the articles and upon a search these were recovered. In such a case it would amount to an act which would be relevant under section 8 as a piece of conduct; and if authority is needed it will be found in the case of Emperor v. Nanua (AIR 1941 All. 145). In drawing a distinction between an act and statement, it was held as under:

'Conduct' may in certain circumstances includes statements as well as acts, but in doing so it still retains the difference between an act and a statement. The difference between a statement and an act is in our opinion clear, A statement must consist of words, be they spoken, be they written, or be they spelled out, as would be done by a mute person who spells Out words on his fingers, and we are inclined to think that even words would not always be statements, as for instance, if a person recited the numbers from I to 10, if one considers a statement in the sense used in section 162, Cr.P.C. Acts however exclude words and in our opinion cannot be translated into words. For instance if a person points out a place, it is impossible to say whether had he spoken he would have said look there or dig there, or you will find there, or I have buried there, or I have committed such and such crime. We are unable to hold, therefore, that the fact that in present case appellant. by taking in his hands certain articles and handing them over, made a statement muchless can we find that he made a statement which amounts to a confession. In Ganu Chandra Kashid v. Emprror (33 Cr.U 396). Beaumont, C.L. held:-- 'The fact of the production of these sums of money is of course admissible as conduct under section 8 of the Act, and if the fact of production is admissible, then the circumstances in which the production took place are also relevant under section

9. The cases of Faqira and others v. Emperor (supra) and Rafiquddin Ahmad and others v. Emperor (supra) were decided on the premise that the statements made by the accused persons did not show any particularity as to from whose information the recovery was effected so as to fasten the statement with the act in terms of Explanation I to section 8 and also for the reason as to who was the first to give that statement which led to the recovery of the article as in that eventuality the statement of the other could not be linked with the act as the fact had already been discovered. In these cases, however, no distinction was attempted to be drawn between an act simpliciter and the statement accompanying the act and, therefore, whatever was said in the context of the facts of those cases. Here in so far as the seizure of the dagger is concerned, the act of Gul Jamal in picking it up from under the box cannot be excluded for it is a piece of relevant conduct under section

8. Similarly, the joint leading to the place from where the clothes of the deceased were recovered is also an act and we see no reason why it should not be so fastened to each appellant as a piece of conduct under section 8 of the Evidence Act in the absence of any bar in this section itself. The High Court had taken the presence of the blood on the front seat of the tonga, which was of the same group as that of the blood of the deceased, to substantially corroborate the confessions of both the appellants as they had stated that the first blow was given while the deceased was sitting on the front seat of the tonga'. " (It may be noted that sections 26, 27 and 28 of the repealed Evidence Act, 1872, are identical to Articles 38, 39 and 40 of Qanun-e-Shahadat Order.) It has been held that joint leading by the two appellants in the reported judgment to the place from where the clothes of the deceased were recovered is also an act and that the same can be fastened to each appellant as a piece of conduct under section 8 of the Evidence Act (now Article 22 of Qanun-e- Shahadat Order, 1984) in the absence of any bar in such section itself.

17. In the present case, though there might be some objection to the admissibility of joint recoveries and joint pointation by the appellants the fact that the two appellants led the police to the place from where the dead body of the deceased and motor-cycle were found and recovered are conducts of the appellants which are admissible under Article 8 of Qanun-e-Shahadat Order. 1984 and can be used as corroboration for the judicial confessions. At least as regards the dead body, it has also been noted that since the boy disappeared nobody knew his whereabouts and the boy was recovered only after the appellants had been arrested on 6-8-1994. Both the appellants led the police and others to the place where the body was found and this is a very important and admissible conduct against the two appellants and provides corroboration for their involvement in the crime and for their confessions. Apart from the above, production of the audio cassette by Fariduddin in which, according to Fariduddin, the conversation with the abductors was recorded at the instance of the CPLC (Citizen Police Liaison Committee) is also a piece of evidence against the appellants. Fariduddin father of the deceased, had talked to the kidnappers on telephone and the conversation was taped on the said audio cassette, There is no reason or motive for Fariduddin to introduce a fake cassette for the purpose of providing evidence against the appellants. As observed, according to the evidence of Fariduddin, after the telephone calls started coming from the kidnappers, he was advised to get the conversation recorded which was done. At that time he did not know nor he suspected that the two appellants. close relatives, were involved and were the culprits who were making demands on telephone. There is no reason to disbelieve or doubt the testimony of Fariduddin that the cassette contained the voice of the accused. Another piece of evidence, though weak, is the confession of one appellant against the other appellant. It has been reiterated in the case of Muhammad Yaqoob v. State (supra) that though the confession is evidence of a weak character and cannot be made the foundation of conviction the same can be used in support of other evidence. Under Article 43 of Qanun-e-Shahadat Order, confession of a co-accused can be taken into consideration as circumstantial evidence. Though confession of the co-accused may not by itself he sufficient to corroborate the retracted confession of another accused, in the presence of other evidence the confession of co-accused can be used as further corroboration. Medical evidence of P.W.5 Dr. Syed Saeed Haider, who had performed post-mortem on the body of the deceased, also confirmed that the deceased died on account of strangulation, which is how the deceased was done to death by the appellants according to their confessions. The medical evidence also provides support to the case of the prosecution against the appellants.

18. In our view, therefore, the retracted confessions of the two appellants were truthful and made voluntarily by the appellants and the said confessions are corroborated by the pieces of evidence mentioned hereinabove. The case against the appellant had been established beyond reasonable doubt and the impugned judgment of the High Court does not call for interference.

19. As a result, Criminal Appeal No.298 of 1998 is dismissed. N.H.Q./N-55/S Appeal dismissed