SYED AFSAR @ RIZVI S/O SIBT HUSSAIN (Appellant) VS The State (Respondent)

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IN THE HIGH COURT O F SINDH KARACHI

Present:

Mr. lttstice Mohatttnmd l(atim IQmn Aglm , Instiice Mrs. I(ausar Sultana Httssaitr'

S ecial Crirnin al A.T. .A. No. 61 of 2022

AppeIlant Syecl Afsar @ Rizvi S/o' Sibt Hussalu through M/s. Rai Ali Wahid l(unwar a/w' Abclul Qadir Soomro, Advocates'

The State Through Mr. Ali Haider Saleern' Adclitional Prosecutor Ceneral, Sindh anc'l I{ana I(halid Hussaiu, Special Prosecutot' Rangers.

Date of Hearing: 22.05.2023.

Date of Judgment 24.05.2023.

TU DGMENT

MOHAMMAD KARI N{ I(HAN AG H A.IrTheA ppellar-rt Syed Afsar @ Rizvi S/o. Sibt Hussain has filed this appeal against the judgment passecl by the Anti-Terrorism Court No.lv, I(arachi c'iated 24.02.2022 it't Special CaseNo.34,/2019(oIdNo.163212016)arisingoutofF'I'R'No'147/2012 U/s.302/34-PPC registered at P.S. Nabi Bux, Karachi whereby the appellant was convicted ar-rd sentenced as under:- a) Accused syed Afsar AIi @ Rizvi s/o. sibt Hussain founcl guilty for the chirge of the offence u/s.302(b)/34ppc and awardecl imprisor-rment for life aucl to Pay sum of Rs'100,000/- (Rupees one hundred thousand) as cornPensation u/s' 544-A Cr'P'C' to the legal heirs of the deceased Abdul Sattar S/o' Abdullah, which sl-rall be recovered by way of arrear of land revelrue ancl in default of payment/recovery thereof undergo further imprisoument for six montl-r., v

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t b) Accused Syed Afsar Ali @ Rizvi S/o. Sibt Hussain found guiltv for tl-re charge of the offence u/s, 6(1)(b) of ATA 1'997 and, convicted u/s.7(1)(a) of ATA \997 for life imprisor-unent ancl under sectionT(2) oI AT A1997, fine of Rs.50,000/- (Rupees Fifty Thousand). In case of default in payment of the fine, he shall x further suffer for six month irnprisontneut.

2.The brief facts of the case are that on76.07.2072, information was received to PS Nabi Bux about a dead body lying at Noman Street, near PTCL Exchange. SI Shoukat along with his subordir-rates left for the pointed place. Police party headed by SI Shoukat and patrolling police officiais reached at the place of incident. He secured empties ancl bloodstained earth from the place of ir-rcident and shifted dead body to Civil Hospital, where inspection of dead body and proceedings u/s. "174 Cr.P.C. were conducted. Dr. Rizwan Ahmed, MLO conductecl postmortem of the dead body. The dead body was ider-rtified as Abdul Sattar S/o. Abdullah, R/o. Dalmia I(aciri Para. Statement u/ s. 754 Cr.P.C. of real uncle of deceased (Cornplainant Yousuf S/o. Jaffar) recordecl by S.I. Shoukat Ali at Civil Hospital and handed over deacl body to the relative of deceased under superdiginama. Another dead body (later it was identified as Anees Ahmed) was lying in the moltuary of the hospital, which was found within tl're jurisdiction of Meethadar. Deceasecl Anees Ahmed was friend of deceased Abdul Sattar. Complainant disclosed that on the fateful clay deceased Abdul Sattar left his home along with his fliend deceased Anees for purchase of r.notorcycle from Hycleri Market at that tirne Abclul Sattar was havir-rg cash of I1s.25,000/-. They were kidnapped and murdered on unknown grouuds by unknown culprits. Thus, FIR was lodged against unknown culprits. After completion of formal ir-rvestigation and failure to trace out the real culprits, report urrrler' "A" Class, was subrnitted before the concerned trial.

3.On 08.06.2016, SIP Mir l(alam was directed by SIO that he receivecl a message from Rangers officials that one accused Afsar Ali is detainecl in Meetha Ram Sub-lail in custody of Rangers and during interrogation he confessed his guilt about commission of offence reported in FIR bearirrg t Page 2 of 13 Muhanunad Anf

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No.147/2012, wherein deceaseci Abdul Sattar S/o. Abduliah had been killed in the year 2072. SIP Mir l(alam along with SIO went to Meetha Raam sub-jail, the custody of accusecl was handed over to SIP Mir Kalam

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by Rangers officials, he interrogated the accused and cluring interrogatior-r he confessed his guilt. On such disclosure accused was formally arrestec'l and custody of accused was brougl-rt to PS Nabi Bux, lvhere accused during interrogatior-r disclosed that he along with his compar-rion Shakeel Benarsi, Nadeem and Rizwan kidnapped cleceased Abdui Sattar ancl Anees Ahmed from Dalmia. Il-rey were taken to a flat situatecl at Solclier Bazar, where they were torturer-l ancl then taken to Mithaclar in Suzuki Hi-Roof, adl'resive tape was pastecl on their rnouth and gunshot injury r,r,as inflicted to Anees at his head and I-ris bocly was thrown in Meethadar area, while Abdul Sattar was hit with bullet on his heacl in Rimpa Piaza, M.A. linnah Road and his body was thrown from Suzuki Hi-Roof. 'l'he rnotive of killing of those persons were disclosed that tirey use filthy lar-rguage against Hazrat Ali (R.A), Hazrat imarn Jaffar (R.A) and other religious digr-ritaries of Sliia sect. During interrogation accused disclosed that l're can point out the place where deceased Abclui Sattar was killecl ancl his deacl bocly was thrown on'1,4.06.201,6. Accused voluntarily letl the police partv, to Rimpa Plaza, M.A. Jinnah Road and ciisclosed that it is same place where he committed murder of deceased Abdul Sattar ancl throrvn his cleacl body on 15.06.2016, SIP Mir Kalan-r submitted an application for recording 164 Cr.P.C. statement of accusecl Syed Afsar Flussain. The Judicial magistrate allowed the application and fixed on 76.06.2076 for recording 164 Cr.P.C. of accused. The statement u/s. 164 Cr.P.C. of accused was recorded by judicial rnagistrate.

4.After completion of formal proceedings on 09.12.2016 tl-re charge was framed against accused Syed Afsar Ali @ Rizvi S/o. Sibt Hassan to which he pleaded not guilty and claimed trial. After hearing the eviclence of 4 witnesses tlle charge was amended as co-accused Muhammec'l Shakeel @ Banasrsi was arrested and joined the trial. The co-accusecl aud the appellant again plead not guilty to the charge,

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5.In order to prove its case, the prosecution examined 13 PWs ancl exhibited various items and other documents. The appellant recorded his Y statement under Section 3 2Q,) Cr.P.C. in which he denied all the prosecution allegations leveled against him and claimed his innocence. He did not give evidence on oath but did call one DW in support of his defence case. His co-accused also denied the allegations in his Section 342 Cr.PC statement and did not give evidence under oath.

6.After appreciating the evidence on record, the learned trial court convicted and sentenced the appellant as set out earlier and hence, the appellant has filed this appeal against his conviction ancl seutence. The co- accused was acquitted of the charge and the State has not filed any appeal against his acquittal

7.The facts of the case as well as evidence produced before tl're trial court find an elaborate mention in the impugned iudgment clatec{ 24.02.2022 passed by the trial court and, therefore, the same rray not be reproduced here so as to avoid duplication and unnecessary repetition.

8.Learned counsel for the appellant has contended that the appellant has been falsely implicated in this case by the rangers/police as he is arr activist of the MQM political party; that the only piece of evidence against him is his retracted judicial confession which cannot be relied upon because it was not made voluntarily; that no recovery was made frorn hirn of any weapon; that there is no other evidence against him and as such for the above reasons the appellant be acquitted of the charge by extending him the benefit of the doubt. In support of his contentions he placec-l reliance on the cases of Abdul Sattar v The State (PLD 1976 SC 404), Hayatullah v The State (2018 SCMR 2092), Taj Bahadur alias Taji v The State(1997 MLD 1072), Anwar Hussain v The State (2019 YLR 1il7),

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Attaullah alias Qasim v The State (2006 YLR 3273), Azhar AIi v The State (2021 YLR 2263), Muhammad ]aved v The State (2021 YLR 2075), Fazal Page 4 of 13 Muhammad Arif

r* f Hussain alias Faqeera v The State (2020 P Cr. L j 311), Owais v The State (2022 P Cr. L J 920), Riaz Ahmed v The State (2010 SCMR 846), Fazal Akbar v The State (2013 P Cr. L J 369), Sardar Bibi v Munir Ahmed (2017 Y SCMR 344) and an unreported judgment clated 04.02.2021, passed by tl-re ATC No.XV, Karachi in Special Case No.35 of 2077.

9.On the other hand learned Additional Prosecutor General ancl Special Prosecutor Rangers appearing on behalf of the State have fully supported the impugned ;udgrnent and in particular contended that tl-re retracted confession of the appellant made before the judicial magistrate was made voluntarily with the object of telling the truth and as such coukl be safely relied upon; that the appellant took the police to the place of tl-re wardat and as such the prosecution had proved its case against the appellant beyorrd a reasonable doubt. In support of their contentions they l-rave placed reliance ou the cases of Muhammad Amin v The State (PLD 2006 SC 279), Dadullah and another v. The State (2015 SCMR 856), Akhtar v. The State (2014 P.Cr. L,J 993), Arshad Ali v. The State (2014 YLR 1394), Niazuddin v. The State (2011 SCMR 725), Khadim Hussain v. The State (PLD 2010 SC 669), Majeed v. The State (2010 SCMR 55), Nazeer alias Wazeer v. The State (PLD 2007 SC 202), Muhammad Ehsan v. The State (2006 SCMR 1857) and Manjeet Singh v. The State (pLD 2006 sc 30).

10.At the outset we note that when tl-re charge was originalll, framecl only against the appellant PW's 1 to 4 had already recorderl their evider-ice before tl-re appellants defence counsel. After their evidence was recorclecl an amended charge was framed which only included the addition of the name of the co-accused. The trial recomrnenced and the original 4 pw's who l-rad already recorded their evidence were not recalled in order. to re record their evidence. ordinarily this rnight have rnade tl-ris a case warranting remand to the trial court to re record the evidence of the first 4 PW's. we have horvever noted that the co-accused Muharmnecl srrakeel who the evidence of the first 4 PW's lt as recorded in his absence and were

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and as such no not recalled alter the framing of tl're charge was acquitted l

prejudicelrasbeenoccasiotredtotlreco-accusedintl.risregard'Likewise of a1l the witnesses since tl're appellant was present during the evidence his counsel we do > a^d had the crrance to cross examine them arl through rrotconsiderthathehasbeerrprejudiceciarrdthusbasedontlreparticular factsandcircumstancesofthiscasesincenoprejuclicelradbeencauseclto on merit and is not a the appellant the no appeal can be proceecled witl-r caseofremarrd.Bothlearneclcounselfortheappellantar.rdtl-reState agreedwitlrtheabovepositiorrandlrencewelravedecidedtolreararrtl decide this aPPeal on merits'

Based on our reassessment of the evidence of the PW's' the place of

ancl empties at the the recovery of the dead body, the recovery of blood incluclirrg the crime scene, the rnedical eviderrce and otlrer rnedical fePorts has post mortem rePort of the deceased, we fincl that the prosecution deceased) was proved beyond a reasonable doubt tl-rat Abdul Sattar (the at rrigl-rt at murdered by firearm on or about 1,6.07,20.12 at about 12.15anr Moman Street Rimpa Plaza M.A.Jinnah Road Karachi' "12. The only question left before us therefore is who rnurdered the deceased by firearm at the said time, date and location?

13.After our reassessment of the evidence we find that the prosecution l-ras NOT proved beyond a reasonable doubt the charge against the in appellant for which he was convictecl for the foliowing reasons keeping view that each crimilal case must be decided on its own particular facts' circumstances and evidence on record;

(a)That there was no eye witness to the rnurder' 1 (b) That there was no last seen evidence'

(c)Ttrat the case of the prosecution revolves around a retractecl judicial confession macie by the appellant' Therefore the questiorr arises whether \^Ie can safely cor.rvict orr the basis of tlre retractec{ judicial confession of the appellant' We set out the retracterl judicial confession for ease of reference below;

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ry "1, Syetl Albnr Rizui @ Znitli S/o Siltt-e-l-lossnn Rizt'i (Lntt')' Rh '171/z Ornngi-Totott, do lrereby stnte ott Houie-No.,A-38, Sector -1997 onth thnt I belortg to MQI\4 (A).I ioined MQM (A) itt nnd tlue to getting iob ns Mmmger in Telegrnph O.ffite; I qit trrtl r ,lesigrtniiorr iit rcSA nnd stLtrted ruorkirtg tts o srlrnpatltizer' lrr 2001, 1 ngnin joined tlrc MQM(A) rts tt rottrl'ie r. I rarrninL'tl yxtsted ns loint rJ.rLit inclmrge .frortr Dcctzrtrber 2009 to DL:certrbt'r 201-l nrrd ns loirrt Sector inchrtrge frottt lnnunrtl-201'l to 20'l3 ltt lulv 20 l2' I receh,etl nn order frotu tlrc Slin High Cotrttttttnd to kill tuo bo11s from Dnlntinrt Knrnt:hi ttttuu:h1 Abdul Snttnr'.5/o Abfutllnlt nnd 'Anees S/Lt Ahnrctl, ruln belortged to tlut Si1tah-e-Snlnltn, ns tlrcr1 Ltotlt instilts the Hazrrtt Ali (ts) ttnd inrnnt Ja.ffer Snditl |rs)' Tlrcrefore, I rtntl my nccotnplices Nnclet.rtt Bttber, Shnkeel Bmnrsi [< l?iztoinrt mnde reil<i of tlmt. Ot 75th luly-2012, tts soott tts Ablul Sattnr uul Anees cortrc out t'rom tlrcir hontcs, ! Lrccon4tarLit'd uitlt nry rccorrylices kidnnppcd tlrcnr irt Hi-Roo.f and hrottglrt nt n Jlnt itt SitnlrKlrurasnrt Soldier Baznr, tortrtted tlLetr nnd renrnirrcd interrogating tltt:tt irt tlte utidrigltt of 15' & 16rM luly, Abdul Sttttorind Anees boarded into Hi-Roof, ltrotrght to Copy Cctrtar '111,/z Hrs n.ftt:r nmkitrg btrllet slrttts irt Arctt Mitlmtlttr mtd nt nbottt tlte lrcnd of Anees throrprt tlrc dcnd-ltody, then ort ratrrrtrittg lrrlrJi ltr A,4..A, lirriuth llond nt rtltrtrtt'12.00 Ilrs u.f'ter rornppirtg tnpc orr tlrc .fnce of Abfutl snttnr killed hint hry nrnkittg brrllct sltot irr lris lu'ntl ruith'1.7. Pistol.

Irr 2013, Httrtrtnnd Sirldique tLtlled utd lu'ld tneeting rn litrnnlt Grounrl, irr ttlrich tlrc inclutrges of nll sectors/ioi.ttt incltLding nrc tlare prescttt, rulrcrein lrc sttid tltnt ltrgt tttttttbttr of MQLa6) tuorkers nre behrg nutrtyred itr l(uachi Citt1, yorl pt'o1tlc tnnq rontclt these ytersorts itrto your re.sltectit't: nrens. Therenfter t nrcctitrg rons held in. Ortngi-Toturr sector whereirt I nttd Dr. Rnslu'ed u'ert directed tlmt yort people runy look tlLesa persotls. For tlLis tnsk Ttrepnrcd. one tentt o.f ruorkers; in rulticlr Klmlid Mnrrrrr, Nltletut Bnltny, Shnkecl Bsnttrsi, Afroz Alnm (Gudoo) nnd Adil ntetrttrl rt,e re itrclttdad. Mmuoor Bnknr's (121-A) tpttrkrs rtset.l to sce nll tlrese lteople. He trced to snrl nbotLt tlu'person rplut lntl ttt bc hillul to tlrc Cctirnl Sttctor ittcltnrge Cltttlnnr Ilnicler ntrd llrc stclor 'fo tlu'lttst Irrclmrge r,rsed to sn1 tfie ttrul I ttsed lo sny Dr. llrrs/rill of nn1 knotoledge, tlrcse hot1s inclutild: (1) Sirni Dncoit (2) Nrr:i.s/r (3) Bnlrttthrr (4) Mttrslitl (5) A.froz, (6) Slnlid Bcngnli rtnd roitlt lirrr onotlrcr ltoy rulrcsc tmnrc is rtrrlctrorptr rllln.s Nnl, tulrc kilk:d to otre lrAutrrn nlias 125.

I cottrrtritted unriotrs tunrdnt I killirLgs ort tlrc itrctnrtce ct.[ Ilntrtttrttrl -a Sirldiry.re. hr 2010, I committed tlrc tntn'der oi Murslid Drcoil, uherein Ashrnf Ali @ Nos/rarl @ Knlnrn Bilmri u'ns tlso ttt:cotnpuried ruith rue, Therr itt the sane yenr, I htchtsiort tritlt Astu'nf Ali @ Noshad €t Slnfquat ctmmittad tlrc nuntlttr o.f Btltnthrr Dncoit irt Nrtrth Nnzinnhatl.

Itr 20L0, in rasptttrsc to tlrc ntttrdttr o.f NlPA RL'zn Hnider I ittclusiorr roitlr ruy t-omltnniott i'lneettr Bttildet cotturrittad llu' Page 7 of 13 Muhammad Arif

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/' rnurtler of Baltlttntonr Bus Driuet'. Then fu tlrc sanrc qear, togetlrcr ruith ury contrndes ulpse tnnrcs I hnz'e tnetiliotrcrl, nssassinated BQM President Aftnb Mnlik nt Fuji Hotel, Sector'15, Orangi Tottut.

x In 2012, at the instance of Hannd Siddiqui mnl tlrc lilglr comnnnd, nlongtrith nty nssocitttes tnrgeted to Melrtnb Alnnt tlrc Ameer o.f Tnblecghi Jartttnt Ormryi Totpn. ltt tlte ttrcnrndrile otr tlrc orders of high cornnuttd killed to PPP Worktrs Nnzislt, lnrctl Bnttn f.r Zeeslwt. ln tlrc sanrc year I comnritted arul got t-onmLitted the nrurder of PPP ruorkers; lehnngir, AIi Rnzn, Ejnz Musltkn, Aknrrl & Tnlir. On my orders, my conrndes cotnutitted the rmrder ol' MOM(A) ruorker Noslnd@ Adeel, ruln runs u'orker o.f Utrit-'126. Fronr the year of 2002 to 2004, I ttccotr4tnuierl rcitlt tu11 tttttrndcs Sndnquot 8 Jnnnl strntched tllr. lides o.f sncri.ficinl aitnnls nutl collected the Fitrn, nnrl sprended.lbnr €t Ttnnic in llu, nretr. Togetlu'r, nty collettgues tutd I supplied tlrc ruenpons to our errtire tttrit f'r sector lnclmrges tlvouglt tutbultutce, nnd got cottq'nletl it, br 2073, tlrc Rnngers stnrtcd operntion, tlrc KTC lnclmrg: Hnnnrmd siddique €s Farooq Saleem directed nll tlw sectors tlmt tlut etiire tnrge.t killitry tcnnts nmy hecotne lticldcn nt Mnrhz-9). '( Tlaretfter I went autay to Lahore nnd a.fter retuntitrg brck to Karacli, I uent azoaq to nty son Saeed Ali Rizai at Dubai ot onc nrcnth oisit aisa.

ln Drbn| I tnet with Hnnmnd Siddique, wlto rcns ruitlrhis cousitt, Irc dirccterl me to get h touch with KTC ltrchnrge Nndeul Alrcnn nnd Searihl lnclrurge '90' Mirilnj Qnzi tlvottglt wlmts-tr1t, wlrcrein tlrc firmrcial ltlp anrlTtariotts orders u,ttrc incltrdctl, tphidr uns .fi'onr tlrc par| s recorrciliiliotr polictl.

I told to Hnnunnd Sidtlique tlmt ht 201,3, I lmd Trrepnred thc tnrgct killing tean o.f Ortmgi-Totpn Sector, in tohitlt Dr. Rtslrced, Mnnzoor Baknr mttl nrc, utere hrcluded.

In 20L0, I togetlrer comrndes committed thc mtu'dcr of SSP uorker i.e, Pcslu>ltrra'n Qnn Hrrcsa;rt. ln tlte snid ossttssit.:,ltiotr, A.iro=, tplrc wns rcsideri o.f Sector 71-1[2. Ornngi aud Feroz o.f Sab=i- Mnrket and Zeeslmrt Sirnj of Clisltti Nngnr were inclurletl. lrt 201,2, conuitted tlrc rrutder of Shnkeel nt Mulrajir Clntpk, Sector 'l-l t/z Ormryi Tozun,

Itt 2010, tlrc Sector luclmrge Glrulam Hnidcr nsked tne to britry tlrc nnus froru Bnldin Sector. I tuul Kmrcer Siddique rpent to Bnldin aut brorryht 78 Knlaslnilkotts froilt tlrc Sactor lnclmrgc Asglmr Bnig. Tltrz arms rue.re got huried to underground in tlrc store of lrttnttt- Bnrgnlt. Dtuiltg rennnd o.f P.S. Pnkistntt Bnznr, I gol recorcrad tltem oue 9rum pistol ruitlt fioe rotnrds frotrt rtul lrcmc, tulticlt u,ns gi.tten to Shnkeel Bmtnrsi for tlre rnurder o.f Ejnz MtBlilat, u,lifu gol recopered tlrc buried nrms nfter tlrc rest frotn Rnngcrs.

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/y { I renutrrber uery roell tlnt I ortlered ttrc killing of tlu'ee Tteople nt tltc bctrcst of Haind Siddiqui antl Fttroog Sttleertr for tlt .fbllotuirtg reasons:

ts 1'.Nnzisltludkilledtonruorkerofl'2l.BLuullrisstttttotttlt oltl sorr at bike. For tlrc ttturder of Nazislt, I lmtl ordered to Slu'r MohturnuaLl @ Slrcru and Khnlid Mnrtur.

2.Sirai Dncoit, tplto usetl to conurtit Zirttt rpitlr notlrcrs' sistars €t inughtcrs drtring dncoitll tpnrdnts, fir ltis killing I lmd ordered to Nndeent Blmi.

i. Aknurl, tplrc lnd canmitted the truLrder of MQM(A) tpot'l<tr Haider, for his kitlirtg I lmd ordered to Slrcr Molnntnnd @ Shertt.

Tlris rntLclt is rtry stntenrcnt.(bold acldecl)

Scl/-&RTI of the Accuseti

Sc1/-& Starnp of Civil/Farnily & Juc{icial Magistrate-XI I(arachi (South)."

-a 1,4. It is well settled by now that a retracted conJession before a magistrate can be the basis of convicting in a capital case. In this respect reliance is placed on the case of Muhammad Amin v The state (PLD 2006 SC 219) which held as under;

"9. Therc is no caail to the propositiott that conuiction coulcl haae been autareled orl tlrc basis of retracted confession which proposition was exanined in case of Mst. f oygun Bibi a. The State PLD 1960 (SC (Pak) 31'i as under:- "We are unable to support tlw proposition of lnzo lnid dorun by tlrc learned ludges itt tlis regnrd. Tlrc retrnctiort of a confession is a circuntstance ruliclt llr:'s no benring tohatsoeper upon tlu question wlrcthtr fu tlrc first instnnce it roas uoluntarily nnde, nnd on tlrc furtlwr question ruhether it is true. Tlrc fnct tlut tlrc nmket of the confession lnter does not ndlrcre to it cnnnot by itself hatte any ffict upon tlrc findings renched ns to rulrctlrcr tlrc confession ruas aolwttnry, and if so, rtlrcther it was tru4 for to tuithdraru froru n self-accusing stntement in direct face of tlrc consequetrces of tlrc accusation, is explicnble fulty by tlrc proxinity of tlnse consequences and need hnz,e no connection wltatsoeuer ruith eitlrcr its oobmtn4l f Page 9 of 13 Muhammad Anf

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nnture, or the truth of tlrc fncts stated. Tlrc leanted ludges ruere perfectly right in first deciding these tuoo questiotts, nnd tlrc ansllers being in tlrc nfJirnmti,e, in y declnring thnt the confession by itsel.f runs atfficient, tnken uitlt the otlrcr facts nnd circwnstances to sttpport Abdul Majid's conztictiott. The retraction of the confession was wholhl inmraterial once it was found that it was ooluntary as utell as true."

10.Siruilnrly in tlrc cnse of the Stnte tt. Minl*m nlins Gttl Hnssmt PLD 1964 SC 813 tlis Aurt lns obseroed as under:- "As for tlrc confessions the Lligh Cottrt, it nppenrs, runs duly conscious of tlrc fact tlnt retracted confessiotr tphetlrcr judicial or extra jttdicinl, could legnlly be talcen ittto considerntion ngninst the nnker of tlrcse confessions himself, nnd if the confessions ruere fotmd to be true nnd uobmtary, tlrcn there ru{ts no need at nll to look for further corroboration. lt is well-settled that as against the maker hintself his confession, judicial -1 or extra judicial, whetlrcr retracted or not retracted, can in law aalidly fom tlrc sole basis of his conoictiort, if the Court is satisfied and belieaes that it was true and aoluntary and was not obtained by torture or coerciott ot inducentetft." (bold added)

Thus, the following criteria must be rnet in order for a retracted judicial confessiou to be safely relieci upon (along with corroboration);

(a)Voluntary i.e. without threat or inducement and

(b)Its object must be to state tl-re truth; assistance for which can be ascertained from (i) whether the confession appears truthful within the context of the prosecutior-r case and (ii) whether there is any other evidence on record which ter-rds to corroborate the truthfulness of tire confession and

(c)Only minor irregularities regarding the rules concerning the recording of judicial confessions can be permitted as determined on a case to case basis the rnain criteria being that such irregularities have not adversely effected tl"re voluntariness or truthfuh-ress of the confession.

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15.EvenifwebelievetlrererractedjudicialconJessionandplace reliance on it in such cases it is important that it is corroborated by some in the independent of evidence from an unimpeachable source as was held case of Muhammad Ismail and others v. The state (2017 SCMR where it was emphasized that if the iudicial confession was the only piece of evidence against tl-re accused then ignoring procedural safeguards would amount to the whole conJession being disregarded and in cases of judicial confessions as alluded to earlier there was a requirement of corroboration in the following terms at P.898;

"The only other piece of nidence remaining in the field uas a judicial confession allegedly macle by Muhammad lqrar, Khalid Hussain and Shakir Ali

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appellants before a Magistrate wriler sectiott Cr.P.C. but ailntittetlly the saitl iudicial confession had been tetracted by the appellants before tlrc trial court and itt tlrc absence of any indepenclent -J c o rr ob or ati on suclr tetr a ct e cl i u di ci al c o nf e s si o n co ul cl

not suffice all by itself for recortlitrg or upholcling the appellants" conaictions' The record nlso slntps tlnt the appellants lud subntitted an applicntion before tle trial court maintaining tlut tlrcy tmd neoer been produced before a Mngisttate for recording of their confessions nrttl thnt tlrc confessions attributed to tluru were bogus' Tlrc proceedings of recording of ttu iudicinl confession deposed nbout bt1 tlrc rcIeoant Magrstrnte slotp thnt it Imd heen nrcntioned in those proceedings tlut before recording tlrc confessions tlrc handatffs of the appellants lnd been renrcz'ed' TIU stateruent mntte by the concented Magistrate before tlw tt'iol court shotps that some police constnbles did remain in tlrc courtroont at tlrc tinu ofrecording of the confessions" ' 1.6. Like wise in the case of Fazal Rehman and others v. The State and others (PLD 2004 Supreme Court 250), it was held as under at P.251 with regard to corroboration of a retracted iudicial confession;

" (d) For the puryose of arriuing at tlrc conchrsion rultetlrcr n retracted confession may form tlrc bnsis of conttiction iJ belieaed to be trtLe and uoluntnily nnde, tlrc Court lms to tal<e into consideration not only tlrc reasons gitten for Page 11 of 13 Muhammad Arif

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nnking the confessiott or retractittg but tlrc attending fncts nnd circuntstances sl4rroLtnding tle sanrc. Tlrcre can be no absolute rule that a retracted confessiort cannot be acted upon unless tlrc same is corroboratecl L materiallq. But as q matter of prudence and caution which has sanctified itself into a rule of laut, a retracted conftssion cannot be nmde solely the basis of conaiction unless the same is corroborated. Tltis, lrctoetter, does not necessnrily nrcnn thnt eaclr nnti et,ery ciramtstnnce nrentioned in tlrc confession regnrrling tlrc conrylicity of tlrc acatsed nntst be seTtnrntely aul independently corrobornted nor is it essentinl tlnt tlrc corroborntion must conte from fncts atd circurustnnces discooered after tlrc confession toas mncle.(bold addeci) (fl The confession of nn nccused person is stLbstnntitte euif,sn., and a conoiction cnn he bnsed solely on the confession. The question lntueoer, as to tphetlrcr on tlrc facts nnd circumstances of n git,en case tlu Court slrcticl nct upon such n confession alone is an entirely differentltl qtrestion, ruhich relntes to the tueight nnd ettidentionl t,nhte of tlrc confession, Normallu speaking it tuottltl not be quite safe, as a nratter of pntdence if not of laro, to base a conaiction for nntrder on tlrc confessiott o.[ tlrc allegerl nturdere4 by itself ancl utitltottt nrore, utlrcn the confession is open to gootl deal of criticisnr.(bold, added)

17 ' Based on the particurar facts a'ld ci'cumstances of this case wrrere admittedly the appellant had beer-r herd i. commu.icado in rangers custody where he origi,ally admitted to numerous crimes for 90 days and the confession itself, whicrr the appelrant claims was not ,,r,e 'oruntary, fi.d that we cannot safery rery on the retracted judiciar confession and exclude the same from consideration. This is because we find trrat it would be impossible fo. the appella.t to record such a long and cietailecl coufessio. whereby he co.fesseci to many murders over a .umber of years with dates and locations a^d names of persons concernecl i, the murder as well as tl-re persons wrro were murdered, To do so wourd require a photo graphic memory which the appellant does not possess.

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Furthermore, why would he confess to so tnany murders wl-rich all attracted the death penalty. It does not appeal to logic, reason or common r sense. Why would he conJess to the instant murder for which he was charged which happened over 4 yeius ago when there was no other evidence against him in this case which again does not appeal to logic, reason or common sense. The most Iikely scenario is that the appellant was given the already typed out confession and simply made to sign it.

Even if we had believed and placed reliance on the conJession (which we do not) what other corroborative evidence is there against the appellant? We do not find any.

(d)No recovery of any weaPon was made from the appellant. Hence FSL matches if any are irrelevant.

(e)The appellant allegedly took the police to the place where the murder took place but admittedly tl-ris place was already known to the police so this piece of evidence is also irrelevant. a (f) Significantly the one place which the police did not know about i.e from where the appellant was abducted the appellant did not take the police to.

18.Thus, for the reasons mentioned above by extending the benefit of the doubt to the appellant he is acquitted of the charge, the appeal is allowed the impugned judgment is set aside and the appellant sl-rall be released unless he is wanted in any other custody case.

79.The appeal stands disposed of in the above terms

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