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Petitioner: MUHAMMAD IMRAN and 2 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Irfan Saadat Khan, Shahid Anwar Bajwa Title: MUHAMMAD IMRAN and 2 others vs THE STATE Case No.:Criminal Anti-Terrorism Criminal Petition No,88- K of 2006 Appeal No,2 of
JUDGMENT
Reported As: 2011 MLD 650 Result: Appeals accepted Judgment JUDGMENT ' SHAFIID ANWAR BAJWA, J.---Appellants Muhammad Imran, Muhammad Hanif and Muhammad Ashraf were tried along with Muhammad Wasim Akhtar, Sharib Arsalan and Muhammad Jamil for an offence under sections 102-B, 302 and .324, P.P.C. And section 7(a)(b)(i) of Anti-Terrorism. Act, 1997. Muhammad Jamil was acquitted on an application under section 265-K, Cr.P.C. Vide judgment dated 15-1-2008 while accused Muhammad Wasim Akhtar and Sharib Arsalan were acquitted vide the impugned judgment. The present three appellants were convicted and were sentenced as under:-- "(1) for offence under section 120-B, P.P.C. r/w section 7(a) ATA 1997 and 302, P.P.C. To 'Imprisonment for Life' and to pay fine of Rs,100,000 each, in default of payment of tine, they shall suffer six months' R.I. More. (2) For offence under section 324, P.P.C. r/w section 7(b) ATA 1997 to five years' R:I. And to pay fine of Rs, 10,000 each, in default of payment of fine, they shall suffer six nionths' R.I. More. (3) For offence under section 7(i) ATA 1997 to five years' R.I. Each. ". 2. The present appellants were initially arrested in connection with F.I.R. No,107 of 2002 lodged at the instance of S.-I. Ali Goliar Soomro at Police Station Civil Lines, Karachi alleging that on 14-6-2002 when he was on duty regarding security at American Consulate, at 1115 hours a Toyota Corolla, a Suzuki High Roof and other vehicles were proceeding one following the other there was a blast due to which several vehicles were damaged. On the basis of said report,. Case was registered and investigation was taken up and the accused persons were charged with various offences. Anti- Terrorism Court on the basis of confessional statements of Muhammad Hanif and Muhammad
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Imran, _medical evidence and evidence of identification came to the conclusion that prosecution had established its case against Muhammad Hanif, Muhammad Imran and others and consequently sentenced Muhammad Hanif, Muhammad Imran and others to suffer imprisonment of death as well as fine. Other punishments were also imposed on them for various offences. Being aggrieved by the judgment appeal was filed by the convicted accused person in the Sindh High Court. Appeal was also filed by the Province of Sindh against acquittal of Muhammad Ashraf. Appeals filed by Muhammad Imran, Muhammad Hanif were accepted by the Sindh High Court. Such decision was challenged in the Supreme Court and the Hon'ble Supreme Court up-held the order passed by this Court. 3. While they were arrested in connection with the above F.I.R., and they were still in custody, on 9- 7-2002 they were also arrested in connection with F.I.R. No, 94 of 2002 and on 17-7-2002 confessional statements of appellant Muhammad Imran and Muhammad Hanif were recorded and on 27-7-2002 confessional statement of the third appellant Muhammad Ashraf Khan was recorded. 4. The case of the prosecution is that on 26-4-2002 when the motorcade of the then President of Pakistan was on its way to Quaid-e-Azam International Airport, and as it passed by a block of flats under the name of Falak Naz Apartment, the present appellants in conspiracy with each other having purchased a vehicle from Saddar Karachi as well as a remote control apparatus, having loaded with explosive substance weighing 400/500 kilograms on the Suzuki High Roof and connected the same with 'remote control system parked the explosive laden vehicle at the footpath of Shahrah-e-Faisal, in front of Falak Naz Apartment. As the motorcade of President of Pakistan passed by Falak Naz Apartment, absconding accused Kamran, switched on the remote control so as to cause explosion of the vehicle with an intention of committing, Qatl-eAmd of the then President of Pakistan. However, remote control did not work. 5. After the charge was framed the appellants were convicted by the trial Court vide judgment dated October 18, 2003 and sentenced to imprisonment for life etc. That judgment was challenged in Special Anti-Terrorism Appeals Nos. 53, 54 and 55 of 2003 and this Court vide judgment dated 10-11-2006 accepted the appeal by holding that proceedings of the case from the stage of charge are illegal as it had caused prejudice to the appellants and occasioned a failure of justice, which could not be cured under section 537, Cr.P.C. Consequently the matter was remanded for re-trial from the stage of charge for offence mentioned in Clause 3 of third Schedule attached to the Anti- Terrorism Act, 1997 r/w section 7(a) of the same Act and section 120-B, P.P.C., r/w section 302, P.P.C. 6. After the matter was remanded the charge was refrained and after trial impugned judgment was passed on 15-1-2008. The present three appellants were convicted and sentenced as detailed above. 7. Learned counsel for the appellants made the following submissions:- (1) The only piece of evidence on which conviction has been based by the trial Court is the confessional statements by the present appellants. Such statements have remained uncorroborated. No reliance can be placed on an uncorroborated retracted confession. Learned counsel relied upon Imran Bashir Farooqi v. The State 1990 PCr.LJ 677, Naqibullah and another v. The State PLD 1978 SC 21, Abdul Razzaq v. The State PLD 2008 Lah. 544, Mah Gul v. The State 2009 SCMR 4. (2) Even otherwise confessions were typed by a typist and were merely signed by Magistrate. On the record it is not stated that any warning was given to the appellants that whether they admitted or not, they would not be remanded to police custody. Learned counsel relied upon State through Advocate General Sindh v. Muhammad Hanif, Criminal Petition No, 88-K of 2006, decided by the Hon'ble Supreme Court on 20-12-2006.
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(3) Shahrah-e-Faisal is the main road and it has been a long, established practice that no vehicle is allowed to be parked by the road side when a VVIP motorcade is to pass. No evidence has been produced to establish as to how for hours a Suzuki High Roof was permitted to be parked on the footpath when motorcade of the President of Pakistan was to pass that way. (4) No evidence has been collected as to what happened to the vehicle, from where the explosive were purchased, there did the explosive go after the botched attempt, from where the remote control devise was purchased, what happened to the remote control devise, after all these loose hands have not been answered by the prosecution. (5) The appellant have been in custody for more than a month and thereafter so called judicial confession was recorded. In such circumstances judicial confession cannot be said to be voluntary. Learned counsel referred to a telegram sent by father of the appellant Muhammad Imran to the Chief Justice of Sindh Court on 18-7-2002 alleging that his son was being detained in Central Prison and despite his hectic efforts authorities had refused to arrange a meeting between his son and his counsel. It was further stated that his son is being pressurized to give confessional statement in different cases. Learned counsel also referred to a writ petition filed by mother of appellant Muhammad Hanif (C.P. No, 1057 of 2002) on 25-6-2002 wherein she stated that her son had been picked up by the police on 18-6-2002 and since then she did not know whereabouts of her son. On this petition notice was issued to the State on 26-6-2002. On 2-7-2002 Additional Advocate General stated that due to some misunderstanding he could not acquire the appropriate information The petition was dismissed as having become infructuous after the confession was recorded. (6) While concluding his arguments, learned counsel submitted that the appellants have been in jail for 8 years and therefore Provincial Government should be ordered to pay compensation of Rs,100,000 to each one of them. 8. Learned Deputy Prosecutor-General made the following submissions:-- (1) That the confessional statement is not the sole piece of evidence in this case. Corroboration is available in terms of evidence of PW.2. (2) At the time when offence was committed the State had no knowledge about the offence having been taken place. State acquired knowledge only after confessional statements of the appellants were recorded. (3) Since after recording confessional statement under section 164, Cr.P.C. Accused were sent to judicial custody, no recovery could be effected. (4) That the confessional statement has been recorded without pressure and is voluntary. Therefore standing alone it is sufficient for recording conviction against the appellant in spite of its retraction. Learned counsel relied upon Daulat Ali and others v. Muhammad Aslam and others 1998 MLD 944, Ashfaq Khalid v. The State PLD 2005 Quetta 1, Shaikh Muhammad Amjad v. The State PLD 2003 SCMR 704, Muhammad Azam and others v. The State 2006, PCr.LJ 62 and Manjeet Singh v. The State PLD 2006 SC 30. 9. We have considered the submissions made by the learned counsel and have gone through the record as well as case law cited at the bar. 10. Since the sole question is as to whether reliance can be placed on a retracted confession and if yes, what are the parameters and paradigms of such reliance. In Imran Bashir Farooqi's case (supra), facts were that one Mst. Zahida Bibi aged about 13 years, a maid servant of one Fazal Khan at his house was found hanging with a rope and was found dead. Accused was produced before the Magistrate and his confessional statement was recorded. This confessional statement was subsequently retracted by him. Regarding the value of a retracted confession, it was observed as under:--
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"It has been pointed out further that the judicial history presents abundant warning against the danger of placing too much reliance on uncorroborated and retracted confession and retracted confession is a source of anxiety to those who have to see that justice is properly administered. In the instance case the confession has been retracted at the trial. It was pointed out by me in Mst. Zubaida's case reported in PLD .1986 FSC page 268(273.E) that the retracted confession in Islam has never been a basis of conviction against an accused person." 11. In Naqibullah's case (Supra), accused was kept in custody for 7 days before recording confessional statement and there was no explanation for such delay. There was no evidence that the Magistrate satisfied himself about cause of delay before recording confessional statements nor did he put any question to accused whether they were tortured by police during, their arrest. Reasons for making confessions were also not inquired into. It was held that inadvertent lapses on the part of Magistrate would not be sufficient to disbelieve Magistrate on this point. However, it was observed by the Supreme Court as under:- "23. In Queen v. Thompson (I) Cave, J. With his usual clarity has laid down some of the tests for the admissibility of the confessions on criminal cases. According to him a confession to be admissible must be free and voluntary. If it proceeds from remorse and a desire to make reparation for the crime, it is admissible. If it flows from hope or fear, excited by persons in authority, it is inadmissible. The material question consequently is whether the confession has been obtained by the influence of hope or fear. The Judge will require the prosecution to show "affirmatively" to his satisfaction, that the statement was not made under the influence of an improper inducement, and who in the event of any doubt subsisting on this head, will reject the confession. He observed that " the rule laid down in Russel on Crime is that confession, in order to be admissible must be free and voluntary, that is, must not be extracted by any sort of threats or violence, nor obtained by any direct or implied promises, however, alight, nor by the exertion of any improper influence" and added that if these principles and reasons for them are, as it seems impossible to doubt, well- founded, they afford to Magistrate a simple test by which the admissibility of a confession may be decided. In conclusion Cave, J. Strongly suspected the retracted confessions, particularly when the proof of the prisoner's guilt is otherwise not clear and satisfactory. In that connection he remarked:- - "I would add that for my part I always suspect these confessions, which are supposed to be the off spring of penitence and remorse, and which nevertheless are repudiated by the prisoner at the trial. It is remarkable that it is of very rare occurrence for evidence of a confession to be given when the proof of the prisoner's guilt is otherwise clear and satisfactory: but, when it is not clear and satisfactory, the prisoner is not unfrequently alleged to have been seized with the desire born of penitence and remorse to supplement it with a confession; a desire which vanishes as soon as he appears in a Court of justice." ' While concluding Hon' ble Supreme Court held as under:- "27.. Applying these principles to the instant case, in order to sustain the convictions of the two accused, prosecution must establish that the two confessions in question are true and are also sufficiently corroborated by material particulars from the other evidence on the record. Now comparing these confessions with the rest of the evidence on the record; the prosecution has failed to adduce any direct or sufficient circumstantial evidence to connect the appellants with the crime and to inculpate 'them for the murder of Abdul Rahman deceased. According the two confession statements Banaras, Zahid, Shamrose and Nawshad were sitting at a distance of 20/25 paces from the place or at the time of occurrence. In the confession of ----Wasim Khan it is further stated that on the alaram raised by Abdul Rahman deceased. The four witnesses actually came to them at the spot. On this Naqibullah accused told them that in case anybody were to enquire from them about Abdul Rahman deceased, they should inform him that he had died by drowning in the
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river. In the confessional statement by Naqibullah it also stated that at the time clothes worn by him got blood stains on them and he had, therefore, to change them." 12. In case of State v. Muhammad Haneef and others, Criminal Petition No, 88-K of 2006 (case in which the present appellants were accused of having caused bomb blast at American Consulate); regarding the confessional statement, the Supreme Court held as under:- "10. The other piece of evidence relied upon by the prosecution to establish its case consists of judicial confessions of respondents Muhammad Hanif and Muhammad Imran. From a bare perusal of judicial confessions it is sufficient to conclude that the Magistrate had acted in complete disregard of the legal requirements for recording. Judicial confessions and was either unaware of the same or had knowingly flouted such provisions and requirements. The judicial confessions have been recorded in English language in question and answer form. There is no certification from the concerned Judicial Magistrate that respondents Muhammad Imran and Muhammad Hanif had knowledge of English language and were able to understand the questions put to them in English for giving a proper reply or that the questions were translated and explained to respondents in the language which they understand fully well and the replies given by them in their own language were translated and written in English language. Apart from the above glaring, irregularity it is also to be found that the Judicial Magistrate had not taken care of other very material and necessary requirements and conditions to be fulfilled for recording the judicial confession. For example he did not himself physically examine the accused persons to verify that they were not maltreated or tortured in spite of vehement claims made by the respondents to have been physically beaten and tortured for agreeing to make confessions. He also did state in his examination in chief whether the statement recorded by him were read over to the respondents in the language which they understood. Apart from the above illegalities and irregularities, it is not noted that the concerned Judicial Magistrate did not make any efforts to find out the dates on which the two respondents were taken into custody and where they remained during the long period which elapsed between their custody and recording of confessions. In the circumstances, the High Court was justified in rejecting and discarding, the judicial confessions as they were not recorded in strict compliance of law and suffer from illegality rendering them as not worthy of credence being contrary to law." 13. In Abdul Razzaq's case (Supra), facts were that on 14-10-2002 dead body of deceased victim was found lying in the cotton field. P.W.14 informed the police about the presence of dead body. Dead body was taken to hospital, where it was identified by son-in-law of the deceased. Thereafter criminal case was registered. It was stated by the complainant that the deceased went to another village to collect rent from tenant. When she did not return they checked here and there and then they received information about a dead body being brought to the hospital. Appellant was in police custody in another F.I.R. Registered at the police station and during investigation he made disclosure that he had also committed murder of Mst. Haneefan Bibi after committing Zina with her. Confession statement was recorded under section 164, Cr.P.C. Before Illaqa Magistrate. On 23- 3-2003 the appellant got recovered a trap made of rubber, use of which rendered the woman physically helpless. High Court rejected contention of the Prosecutor General that confessional statement under section 164, Cr.P.C. Would itself be a source of corroboration to the extra judicial confession. Thereafter the High Court laid down the law as under:-- "(14) A statement recorded under section 164, Cr.P.C. Shall not invariably be invalidated or inadmissible if recorded during the period when a person is in police custody, yet such confessions have often been held to be involuntary when accused was kept in police custody. The minimum that is required in such a case is that such confession must be duly corroborated by some relevant evidence and circumstances of the case, especially when as per version of the appellant he was in police custody for so many days prior to his formal arrest. In case the statement of the appellant has to be considered it should, in the absence of very convincing reasons, be taken in totality. The
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statement of the appellant simply consists of the narration of the events in which he committed offence alleged against him. It does not consist of any such part which may have to be sifted from the other for the determination of the truth: It has to be disbelieved or has to be relied upon as whole. Thus if the accused was already in police custody for a number of days the veracity of the confession by itself would become doubtful. Such confession would thus be inadmissible under the law. (15) There is still another aspect of the matter. The appellant has not adhered to the alleged confessional statement. He retracted from the same as soon as he had an independent opportunity before the learned trial Court. He denied the charge and also retracted from the confession. (16) The retracted confession all the more needs very strong corroborative evidence. It was held in Muhammad Hanif v. The State 1995 PCr.LJ 985 that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction on its strength alone. The statements under section 164, Cr.P.C. Have never been taken by the Courts as a gospel truth. The Courts have to look into and have always been demanding for evidence before convicting the accused for a capital punishment notwithstanding that the accused had confessed the guilt. Reliance in this behalf can be placed on Nadir Hussain v. The Crown 1969 SCMR 44. (17) Where the extra judicial confession or even the confession under section 164, Cr.P.C. Is inherently defective or incompetent, the corroborative evidence of howsoever high quality cannot injec vigour or life in such confession. The reason is more that obvious. The corroborative evidence is required to supplement the strength of the circumstantial evidence and to make complete link between various -events comprising the circumstantial evidence. The corroborative evidence is not am cannot be a substitute for the facts which are to be established any direct or circumstantial evidence. Direct and circumstantial evidence has to stand on its own legs and the corroborative evidence shall only be supplementing or adding to its credibility. Thus where the evidence or the confession itself suffers from inherent infirmity, it cannot be accepted or relied upon to bring home the guilt of an accused because corroborative evidence is never a substitute of the primary evidence. (18) This is where the evidence in this case lacks quality needed to prove the guilt of the accused. As already stated the extrajudicial confession is not worthy of independent reliance nor the statement under section 164, Cr.P.C. Is by itself enough to establish the charge against the accused. (19) The evidence of the movie-maker for the video of the confessional statement of the appellant is also of no use as it was recorded while the appellant was in police custody and the circumstances do not show that it was independent, voluntary and of such quality that it could be accepted in spite of the fact that the accused was at that time in actual police custody. (20) Above all there is another farcical situation which shows how the police manoeuvered the extra-judicial confession. This also would be indirectly causing aspersion on all the aspects of the case including the veracity of the statement under section 164, Cr.P.C. The case of the prosecution is that the accused was arrested on 14-2-2003 and prior to it the appellant had confessed his guilt before Muhammad Ibrahim and Inayat. P. Ws. On 13-2-2003. The version of the appellant has throughout been that he was arrested by the police almost 5-6 days prior to the alleged statement under section 164, Cr.P.C. On the record of the learned trial Court various press clippings/newspapers are available wherein the police tried to publicise its efficiency for digging out blind murders/rape cases and in that context it showed that it had arrested the appellant as a serial killer. Even the DPO, Bahawalpur tried to take the credit through a press conference which was published in the daily national newspapers on 15-2-2003 and 18-2-2003.
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(21) It, however, either failed to take the notice or just ignored it that in the Daily newspaper "Khabrain" and "Jong" dated 11-2-2003 a news was prominently flashed showing that the appellant had been -arrested as a serial killer. These newspapers are available on the record of the learned trial Court as Mark-A and Mark-B. Besides unmarked and un exhibited newspapers,' photocopies of the newspaper clippings are also available on the record, appropriate notice whereof has also been taken by us. These clearly belie the whole police version. The appellant was already in police custody when the extra-judicial confession dated 13-2-2003 before Muhammad Ibrahim and Inayat was concocted. Similarly this also has direct bearing on the credibility of the statement under section 164, Cr.P.C. Which was recorded on 15-2-2003. While the appellant was in police custody since 9-10-2003 the confinement of the appellant in the police custody for such a long time prior to the confession under section 164, Cr.P.C. By itself is sufficient to destroy the prosecution case established with reference to this statement because such statement could not be termed as voluntary and with the free consent. This has rather totally supported the version of the appellant pleaded in his defence." 14. Lastly learned counsel for the appellant relied upon Mah Gul's case (supra). Fact of this case were that report was lodged by A.S.-I. Stating that when a police party reached at the place of occurrence few persons armed with Kalashnikovs appeared from a dilapidated Kotha. One of them fired at the moving jeep. .Consequently S.H.O. Sustained injuries, the culprits fled. Injured S.H.O. Succumbed to his injures. The Supreme Court observed as under:- "10. After taking out from consideration the ocular evidence, we are left with the belated retracted confessional statement of the appellant and the evidence of recoveries only which being purely of corroboratory in nature, in our view, are not capable to bring home…
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