Al Wakeelo
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Your Digital Lawyer, Always on Duty
Initializing Secure Chambers
Official Citation: 1982 SCMR 321
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 1980
Decision Date: 1980-04-13
Parties: STATE vs ASFANDYAR WALI AND 2 Other
This judicial decision was delivered by the Supreme Court of Pakistan on 1980-04-13. The matter involves proceedings between STATE and ASFANDYAR WALI AND 2 Other, officially reported as 1982 SCMR 321. The court reviewed applicable Pakistani statutes, procedural requirements, and governing case-law authorities. The full text below contains the complete facts, arguments, and legal reasoning rendered by the honorable bench.
Case cited as 1982 SCMR 321
Court Name: Supreme Court of Pakistan Judge(s): Muhammad Haleem, Abdul Qadir Sheikh, Durab Patel Title: STATE vs ASFANDYAR WALI AND 2 Other Case No.:Criminal Appeal No. 143 of 1975 Criminal Revision Petition for Special Leave
to Appeal No. 58-P of 1977 Date of Judgment:1980-04-13 Reported As: 1982 SCMR 321 Result: Petition dismissed Judgment ORDER DORAB PATEL, J.-Mr. Hayat Muhammad Khan Sherpao (hereinafter called Mr. Sherpao), a leader of the Pakistan People's Party and a Minister of the North-West Frontier Province Government was killed in an explosion at a meeting of the History Society of the Peshawar University on 8-2-1975. The occurrence took place at about 4-00 p.m., as Mr. Sherpao was addressing the meeting and according to the prosecution, a bomb had been blasted inside a tape-recorder, which had been left on a chair very near Mr. Sherpao, and as the bomb exploded whilst Mr. Sherpao was addressing the meeting, it killed both him and Mr. Abdul Hamid Khan, the President of the History Society. Members of the audience sitting in the front row were also injured. The respondents were tried for these murders with six other persons, who are absconder, under sections 3/4/6 of the Explosive Substances Act and under sections 121, 121-A, 122 and 123-A of the Penal Code read with rule 43 of the Defence of Pakistan Rules. The names of three of the absconders are relevant to this petition. They are Amjad, Anwar Bacha and Sher Zaman. The prosecution relied on the judicial confessions of the respondents, but as the confessions hadbeen retracted, they also examined 65 witnesses, but we have to state with regret that both the prosecution and the respondents appear to have competed in prolonging the trial unnecessarily, because the prosecution examined unnecessary witnesses, whilst the respondents prolonged their own ordeal by marathon cross-examinations, which only damaged their case.. Therefore, it is not surprising that they were convicted and by its judgment dated 31-7-1975, the Special Court of N: W. F. P. Set up under the Suppression of Terrorists Activities Act, 1975, convicted the three respondents under sections 3 and 6 of the Explosive Substances Act and sentenced them to ten years' R. I. Each.
---
## Page 2
Fines were also imposed. The respondents, Asfandyar Wali Khan (hereinafter called Asfandyar) and Ahmad Farooq (hereinafter called Farooq) were also sentenced under rule 43 of the Defence of Pakistan Rules and sentenced to seven years' R. I. Further, what is very unusual, these sentences were ordered to run consecutively. Then respondents challenged their conviction in an appeal in the Peshawar High Court ; their defence was that their confessions had been obtained by torture, in this connection, each of the respondents has given detailed particulars of the manner in which he was tortured. They also said that the witnesses examined by the prosecution had given false evidence, because the Police had unleashed a reign of terror in the province and picked up persons and detained them in jail until they had. Made statements implicating the respondents. The learned Judges of the High Court, who beard the appeal, were disturbed by these submissions, and they decided to inspect the jail in which the respondents had been detained pending their confessions. After inspecting it, and in view of the irregularities in the manner in which the confessions were recorded, the learned Judges were satisfied that the confes--sions were not genuine and had been obtained under pressure, if not torture. They also regarded with dismay the fact that the Police statements of the witnesses, who implicated the respondents, had been recorded after delays of several weeks and to some cases, the witnesses had been kept in jail until they agreed to record their statements implicating the respondents. In these circumstances, they held that the case against the respondents was fabricated and they acquitted the respondents by their judgment dated 13-7-1977. The State has, therefore, filed this petition for leave against the acquittal of the respondents. In order to appreciate the arguments of the learned Advocate-General, we have to point out that Asfandyar is the son of Mr. Wali Khan, the leader of the National Awami Party (NAP) and the leader of the Opposition at the time of the occurrence. Now, Asfandyar lived with his father in Shahibagh, Charsadah and it is not the prosecution case that Asfandyar ever came to Peshawar in connection with the conspiracy to murder Mr. Sherpao. But, according to the prosecution, in October, 1974, Asfandyar had received instructions from Ajmal Khattak, who had escaped to Afghanistan after the Liaqatbagh firing, through Sher Zaman, the absconder, to kill Mr. Sherpao at all costs. Just at that time by a strange coincidence. Asfandyar met the respondent Nisar Khan, therefore, he told him about Ajmal Khattak's message, and Nisar Khan immediately agreed to join in the conspiracy to murder Mr. Sherpao, because, according to the prosecution, Nisar Khan, had his own grudge against Mr. Sherpao and Mr. Bhutto. However, although the conspirators decided to eliminate Mr. Sherpao, they appear to have become totally inactive thereafter. Then suddenly the absconder, Anwar Bacha, came to see Asfandyar in his house on 5-2-1975 and informed him, according to Asfandyar's confession, that he and Amjad "were going to blast Hayat Khan on 7-2-1975 in a students' function in the Polytechnic Institute." Anwar Bacha came to see him again either the next morning in his house or on the morning of the 7th February, 1975. This part of the confession is, to say the least, somewhat vague. Be that as it may, the absconders, Anwar Bacha and Amjad came to Asfandyar's house in a taxi owned by one Ihsanullah and told Asfandyar in the presence of Sher Zaman, who happened to be present, that they had called off their attempt to kill Mr. Sherpao at the Polytechnic Institute, therefore, according to Asfandyar's confession "they left the tape-recorder which was fitted with explosives by Sher Zaman. On 8-2-1975 at about 9-00 a.m, Amjad and Anwar again visited Shabibagh and told Sher Zaman that Hayat Khan will attend a students function in the History Department of Peshawar University and that they intend to blow him up." Therefore, Amjad and Anwar Bacha left again by taxi for Peshawar with the tape-recorder. As the learned Advocate-General relied for this part of the prosecution case on Asfandyar's confession, we have quoted in verbatim and according to the learned Advocate-General, the words quoted mean that
---
## Page 3
Amjad and Anwar Bacha had left the tape-recorder with the bomb in it in Asfandyar's custody on the 7th of February, 1975, and had taken it back from him the next morning. Now, according to the prosecution, Anwar Bacha and Amjad had come the next morning to Asfandyar in a taxi owned by Nawab Khan. The number of this taxi was A J K 6301 and they drove back to Peshawar in order to meet the respondent Farooq, because Farooq had promised to help them in the event of their making an attack on Mr. Sherpao's life. However, presumably, in order to conceal their movements, they dis--charged the taxi at Government College in the city at about 1- 00 p.m., and according to the learned Advocate-General, the college was about five miles from the University. After discharging the taxi, Anwar Bacha and Amjad went to the Mahmoodi Hospital where Farooq was looking after his father, and at their request, Farooq immediately took them in his car to the University. This was around noon. According -to the learned Advocate--General, the absconders had the tape-recorder with them at this time, but there is no evidence whatever about their movements after they were dropped by Farooq at 1-00 p.m. And 3-00 p.m., when they again called Farooq from the Mahmoodi Hospital. Farooq then took them for the second time to the University and this time it was for the purpose of killing Mr. Sherpao. Presumably in order to conceal their tracks, the absconders told Farooq to park the car at the Post Office of the University. And they left for the meetings of the History Society, whilst Farooq waited in the car. After half an hour, the absconders returned, and as Farooq drove them back to Peshawar city, they informed him that they had carried out the explosion. The absconders then hired a taxi from the taxi stand to take them back to Charsadah. The taxi was owned by one Rahim Shah, but after a few miles, they got out of the taxi and reached Charsadah on their own. They were arrested at night in the bazar of Charsadah because they were seen to be loitering about in a suspicious manner with arms, despite the ban on carrying arms. However, they managed to obtain bail and absconded. In order to prove its case, the prosecution relied on the confessions of the respondents, and .We may pause to observe that the learned Special Judge was impressed by these confessions. The prosecution also examined Ihsanullah, Nawab Khan and Rahim Shah, the taxi drivers, who drove the absconders back and forth between Charsadah and Peshawar, and the view of the trial Court was that this evidence also lent strong support to the prosecution case. Then, as to the other pieces of evidence which impressed the trial Court, it is sufficient to state that Madad Khan, S. I., gave evidence about the motive for the crime and his evidence implicates Asfandyar and his family, but this evidence was given on the basis of source reports, and the witness had to admit that he had no personal knowledge of the matters about which he gave evidence at length for two days. The prosecution also examined Murad Khan, a Foot Constable of the Special Branch, who had been deputed to keep around the clock watch on Mr. Wali Khan's house in Charsadah and as part of his duties. Murad Khan had to maintain a diary containing the particulars of all persons visiting Wali Khan's house. Finally, it is sufficient to state that the prosecution examined ten witnesses in order to prove bow the occurrence took place. And, as we pointed out, the tape-recorder, which was supposed to contain the bomb had been placed on a chair near Mr. Sherpao. This tape-recorder was of a standard size, therefore, the prosecution had given a practical demonstration of the occurrence in the High Court by placing a similar tape-recorder on a chair, and the learned Judges have given a finding that persons sitting in the front row would have seen the tape-recorder if it had been placed on a chair as alleged by the prosecution. But, out of the ten witnesses examined by the prosecution to prove the occurrence only four claimed to have seen the tape-recorder, whilst the other six denied having seen it. Further, what is more important is that the witnesses who claimed to have seen the tape-recorder were the witnesses sitting in the front row, but they were not injured in the explosion. On the other hand, the witnesses who had not seen the tape-recorder, were the witnesses who had been injured in explosion. Therefore, in view of this infirmity in the prosecution
---
## Page 4
case and on the further finding that the prosecution version of the occurrence was inconsistent with the circumstantial evidence and the medical evidence, the learned Judges rejected as false the claim of the prosecution that the explosion was caused by a tape-recorder which had been left on a chair near Mr. Sherpao by the absconder, Amjad. The question relates entirely to the appreciation of evidence, and the learned Advocate-General was not able to show us any error of law in this finding of the learned Judges that the occurrence had not taken place in the manner claimed by the prosecution. However, as this part of the case involves absconders, we will refrain from making any further observations on it and assume, for the sake of argument only, that the explosion took place in the manner claimed by the prosecution. Even on this assumption, has any case been made out against the respondents? As submitted by the learned Advocate-General, the learned Special Court was impressed by the confessions of the respondents and so we will first examine Asfandyar's confession. On the footing that this confession is genuine, what does it prove? It is obvious from our previous reference to the confession that Asfandyar had agreed to join the conspiracy to murder Mr. Sherpao and had also requested Nisar Khan, the other respondent, to join the conspiracy, in October, 1974. But, even according to the confession, Asfandyar did not take any steps in furtherance of the conspiracy after joining it until the absconder, Anwar Bacha came and told him that he (Anwar Bacha) and Amjad had decided to kill Mr. Sherpao on 7-2-1975. And, although Anwar Bacha informed him of what was to happen. Asfandyar merely stated in his confession, after referring to the information given to him by Anwar Bacha--"Bacha then left the place". Then, according to the confession, the two absconders came to see him on the 7th of February, informed him of their change of plans and according to the learned Advocate-General, they had left the tape-recorder with the bomb with Asfandyar. If this submission be true, it would clearly bring Asfandyar within the mischief of section 6 of the Explosive Substances Act. But, Asfandyar did not say that the absconders had left the tape-recorder with him. He had said in his confession "they left the tape-recorder with Sher Zaman." We can read this state--ment to mean that the tape-recorder was left with Asfandyar only on the assumption that Sher Zaman was then living in Asfandyar's house, but Asfandyar has not said so, and the learned Advocate --General was not able to refer us to any evidence to show that Sher Zaman was living with Asfandyar or had spent even the night of 7-2-1975 in Asfandyar's house. And, it is significant that the Foot Constable, who was keeping a watch on Mr. Wali Khan's house. Has also not said that the absconder Sher Zaman has been seen in Wali Khan's house. Reverting however to the confession as to what happened on the following morning, Asfandyar said about the absconders "they asked for the tape-recorder which was given to them by Sher Zaman". Asfandyar has not said that he had given the tape-recorder to the Absconders. Therefore, just as according to the confession, Nisar Khan had turned up by a strange coincidence when the absconders had come to the Asfandyar's house in October, 1974, Sher Zaman could have been present at Shahibagh on the 7th and 8th of February, 1975 by a coincidence. Or, as is more likely, if he was in touch with the absconders, he may have turned up at Asfandyar's house in order to meet the absconders.. Therefore, on a proper analysis of Asfandyar's confession, it does not bring this respondent within the mischief of section 6 of the Explosive Substances Act. However, as according to the confession, Asfandyar had agreed to join the conspiracy, it becomes necessary to examine the further question whether the confession was genuine and voluntary, because it was retracted and whilst the learned Special Judge held that the confession was genuine and voluntary, the learned Judges were satisfied beyond doubt that the confession had been obtained under coercion. It is not irrelevant to observe here that the prosecution had relied on two confessions by Asfandyar and the first was recorded within two weeks of his arrest. But, this confession is of no assistance
---
## Page 5
what--ever to the prosecution case. Therefore, the prosecution managed to obtain a second confession from Asfandyar on the 27th of March, and as this was six weeks after his arrest, the learned Judges held that it would be contrary to the law of generations to accept as genuine a con--fession, which had been recorded after a delay of six weeks. But, accord--ing to the learned Advocate-General, the view of the learned Judges was contrary to the law declared by this Court in Syed Sharifud--din Pirzada v. Sohbat Khan and three others PLD1972SC363. The submission is fallacious for more reasons than one. In the first place, the delay in recording the confession in the case cited was of two weeks, and there can be no comparison between a delay of two weeks in recording a confession and a delay of six weeks. Therefore, we would make it very clear that the rule laid down in Sohbat Khan's case was not attracted to the instant case. Secondly, although there was delay in Sohbat Khan's cave, there was nothing unusual about the manner in which the accused had beer, detained. On the other hand, the manner in which Asfandyar had been detained was shocking to any one's sense of justice. As the confession on which the learned Advo- -cate-General relied had been obtained after six weeks, we invited the, learned Advocate-General to produce the remand order for Asfandyar detention. The learned Advocate-General stated that there was no remand order, and that a remand order was unnecessary because after the expiry of two weeks from his arrest Asfandyar was under detention order, but, the learned Advocate-General was not able to produce that detention order, nor was he able to tell us what happened to the charge for which Asfandyar had been detained. In these circumstances, it is not surprising that the learned Judge did not accept the plea that Asfandyar was being detained under detention older, and they were of the view that his confession had been recorded after he had been in illegal Police custody for six weeks. And, the view thus taken is a possible and reasonable view and is in consonance with the principles repeatedly laid down by this Court yet another circumstance relevant to the genuineness of Asfandyar's confession which is absolutely shocking. Although the learned Advocate-General was not able to give us the precise dates, it would appear that after Asfandyar's first confession had been recorded, he was shifted to the old Fort of Balahisar and confined to the dungeon of the Fort until he expressed his willingness to record a confession. We were constrained to observe that we were shocked by the conduct of the Government in shifting the respondent to the dungeon of an old Fort. The learned Advocate-General's only reply was that the Fort had been declared a sub jail, but he could not explain. Despite our enquiries, why this medieval Fort was declared a sub jail. There--fore, like the learned Judges of the High Court, we are very poorly impressed by the alleged notification declaring the Fort to be a sub jail. And as the learned Judges were shocked by this aspect of the case. They very properly decided (we say so with respect) to inspect the "rooms'' in which Asfandyar and Nisar Khan were detained after notice to the State. And, as to what they saw in their inspection, they have observed in their judgment :- "We were taken to the cells where Nisar Muhammad Khan and Asfandyar Wali accused had ' been kept from 12-3-1975 to 27-3-1975. What we observed was that these cells were in fact dungeons depicting a ghastly picture of grave in which one could Lot, maintain his balance of mind, even if he is kept for one day, muchless for a number of days which fact is a matter of record in this case. These two dungeons are thickly dark and dingy. In view of this, it is easy to imagine that the accused appellants, or for that matter any one else, would not be able to keep their staminas in tact and in order to get temporal relief from this horrible situation, they would be pre--pared to take any course even if it would ultimately go to their detriment. In these circumstances, can it be said that the accused appellants had made their confessions voluntarily." These observations make very sad reading and in our humble opinion the only possible conclusion is that Asfandyar had been coerced into recording his confession, as rightly held by the learned
---
## Page 6
Judges. The learned Advocate-General however, attempted to defend the view taken by the Special Court on the ground that the Special Court was impressed by the evidence of the Magistrate, who had recorded Asfandyar's confession. But, we also have read this evidence and we regret our inability to agree with the view of the Special Court. How--ever, as the Magistrate was a probationer and was presumably under temptations, If not pressures, we would only make one observation. According to the settled law, the delay in recording the confession was absolutely shocking. Secondly, the accused was the literally being pro--duced from the dungeons of a medieval Fort. As these circumstances invited suspicion, the least that the Magistrate was required to do was to question the accused about his treatment. In custody, and to verify for himself that the body of the accused did notbear any marks of ill-treatment. As these elementary safeguards for recording a confession' were disregarded, we respectfully agree with the view of the learned Judges that no reliance whatever can be placed on Asfandyar's confession. The learned Advocate-General then submitted that even though the confessions were retracted, they were amply supported by evidence, and in this connection, he placed great reliance on the evidence of the three taxi drivers, Ihsanullah, Nawab Khan and Rahim Shah. But the difficulty in the way of accepting this submission is that we are satis--fied that the confessions of Asfandyar were neither genuine nor volun--tary. However, we would proceed to examine the learned Advocate--- General's submission, because we find that the evidence of the taxi drivers falsifies Asfandyar's judicial confession instead of corroborating it. Ihsanullah claims to have driven the taxi, which took Amjad and Anwar Bacha, absconders, from Peshawar to Charsadah on 7-2-1975. And, it would not be irrelevant to point out here that witness's brother was a chauffeur of the late Mr. Sherpao. Now, the learned Advo--cate-General placed great stress on this witness's evidence, because the absconders were supposed to have carried the tape-recorders with the bomb in it from Peshawar to Charsadah, deposited it with Asfandyar and brought it back next morning to the Peshawar from Asfandyar's house. We would pause to observe here that it is not an easy thing to travel about with a bomb, and no conspirators would take the risk of carrying explosives from Peshawar to Charsadah and back unless it was absolutely necessary, but there is absolutely no evidence to show that the absconders could not have kept an innocuous looking tape-- recorder with themselves for one night. Secondly, as Mr. Wali Khan's house was under surveillance and as he was the leader of the Op--position, even if the absconders had wanted to deposit the bomb in a safe place for one night, it is absolutely inconceiveable that they would have taken the risk of bringing themselves under surveillance by visiting a house, which was under surveillance. The prosecution story, therefore, is extremely improbable. With these observations, we turn to Ihsanullah's evidence by which the Special Court was highly impressed. Ihsanullah said that he owned a Taxi bearing No. Swat-244, and that on the 7th of February, 1975 on the orders of the respondent, Nisar Khan, he had taken the two absconders from Peshawar to Asfand--yar's house and that ' the absconders had met Asfandyar for about half an hour or 45 minutes and then returned to Peshawar. Now, according to the prosecution, and, according to Asfandyar's confession, the two absconders had brought the tape-recorder with them, therefore, we would quote what the witness said about what the absconders were carrying with them-in the taxi. Ihsanullah said-- "The man wearing suit was having a red colour bag in his hand and had a khaki "Lifafa" containing clothes. I did not know the names of those two persons. I then took these two persons in my car to Muhammadi Hospital Peshawar City. They spent about two or two and a half hours in Muhammadi Hospital and then they came out saying that they wanted to go to the Bungalow of Khan Abdul WAR Khan in Shah Bagh Charsadah. We then started for the Shah Bagh Charsadah. On reaching
---
## Page 7
Shahi Bagh Charsadah, they enquired about Khan Abdul Wali Khan who was not present and then they met Asfandyar Wali accused and they stayed with him for about half an hour. As that time, I was sitting in a garage near my car. After about half an hour or 45 minutes those two persons, against left in my car, driven by me towards Peshawar." There is not a word in the witness's evidence to corroborate the statement in the alleged confession of Asfandyar that the tape-recorder had been brought to his house. Secondly, the witness admitted in his cross---examination- "I was examined by the Police after about 24 or 26 days. I had been arrested by the Police after about 12/13 days of the said incident. And, then my statement was recorded by the Police after about 12/13 days of that." Next, as…
Read the unabridged text and precedent citation network on Al Wakeelo Legal Research Platform.