JAVED IQBAL Versus THE STATE

1. G. SAFDAR SHAH, C. J.---- Javed Iqbal (22/23) son of Haji Redi Gul was tried by Special Court, N: W. F. P. under section 25 of the Telegraph Act, alongwith Shah Hussain (23) and Hussain Ali Shah (22) (both of whom were, however, acquitted), was convicted and sentenced to three years' rigorous imprisonment. Being aggrieved, Javed lqbal has come up in appeal to this Court under section 7 of Suppression of Terrorist Activities (Special Courts) Act, 1975 (hereinafter called Act) which in view of subsection (2) thereof is required to be disposed of by this Bench.

2. The report of occurrence in this case (Exh. P. A.) was lodged at Charsadda Police Station by Safdar Khan Lineman (P. W. 7) at 12-00 hour on 14-9-1973, in which he made the following allegations:

2. That on receipt of information this morning that telephone line between Charsadda and Peshawar was out of order, he proceeded to check the line on Charsadda-Peshawar Road and on reaching choti puli, situated near about mile-stone 19 from Peshawar, he discovered that four telephone wires were cut from one of the poles in consequence of which the trunk system had been dislocated. According to Safdar Khan, the wires in question were not cut to be stolen, but the culprit seems to have intended to sabotage the communication system.

3. The record would show that the F. I. R. of occurrence was recorded by A. S. I. Habibullah (P. W. 5) who thereafter proceeded to the place of occurrence. And on arrival there saw the telephone wires cut and then prepared site-plan (Exh. P. B.) at the pointing out of Safdar Khan. 'Having completed these formalities thus, Habibullah Khan could not do much in the matter as no one was named in the F. I. R. But in due course one Murad, an accused in another case under the Act, is said to have named appellant for the crime and consequently he was arrested by Inspector Jaidad Shah, East Cantt. Police Station on 21-8-1974. It is common ground between the parties that on 22-8-1974, accused was produced before a local Magistrate who remanded him to police custody for seven days. On 28-8-1974, he is alleged to have volunteered to make a confessional statement, was accordingly produced before Sardar Mohammad Ayub Khan M. I. C. (P. W. 9) when he is said to have, just like accused Shah Hussain and Hussain Ali Shah, made confessional-statement (Exh. P. X). And thereafter, the three of them were challaned in Special Court to stand their trial in consequence of which, however the latter two were acquitted.

4. The case file would show that in Special Court, prosecution relied on the evidence of police officials and two witnesses from Post & Telegraph Department, according to whom the trunk system between Charsadda and Peshawar was found dislocated on 14-9-1973 and during the fault-finding mission, Safdar Khan Lineman had discovered that two telephone wires had been cut at choti puli on Charsadda-Peshawar Road. The judgment of Special Court would, however, show that the accused in this case was convicted only on the basis of his retracted confession. And before us, learned Assistant Advocate-General has indeed owned this position, for according to him, there is nothing in the evidence of P. Ws. which would connect the accused with this crime. Now by going through the evidence on record, we agree with him. But even so, the evidence of S. I. Madad Khan (P. W. 3) would appear to be relevant in so far as he had traced the connections of accused with the militant Pakhtoon Zalmai Organisation which, in view of a notification dated 16-2-1974 of Government of Pakistan, Ministry of Interior, was banned. In his evidence before Special Court, Madad Khan deposed that he had assumed charge of his office as Area Group Officer, Charsadda on 6-8-1974, that in the record of his office, accused was shown to be holding the rank of Commander, Pakhtoon Zalmai (sic) said to be indulging in subversive activities. He admitted in cross -examination, however, that the name of accused was there in the record of his office long before be assumed charge of Area Group Officer and further that his name as Commander Pakhtoon Zalmai for village Hassankhel appeared in the record of 1974. There is nothing in his evidence, however, to show the basis on which in the record of his once accused was shown as Commander Pakhtoon Zalmai, the workers of which were indulging in sabotage activities. But we would not construe this omission against the prosecution, although the evidence of Madad Khan would, as would be seen presently, have some bearing as to the fate of this case.

5. The retracted confession of accused, on which alone he has been convicted, reads as under :-

3. "It have passed my F. A. Examination from Government College Charsadda, after availing last chance in 1973. I joined the Pakhtoon Zalmai Organization of village Hasankhel, Prang as a volunteer. In March 1973 Pir Ghulam Akbar of Prang Hassan Khel was our Commander and following were more members of his group :-

(1) Bashir of Prang Hassankhel

(2) Nazir of Prang Hassankhel Brothers.

(3) Hasan of Prang Hassankhel

(4) Jan Mohammad son of Gul Mohammad Tebsildar Hassan Khel Prang.

(5) Shah Hussain.

(6) Iqbal Hussain.

(7) Sharif Gul.

(8) Zahoor son of Naqib Khan Hassan Khan.

(9) Pervez son of Firdaus Khan Hassan Khan.

(10) Sayed Amir son of Yasin Hassan Khan.

(11) Mohammad Amir son of Yasin Hassan Khan.

(12) Gohar of Hassan Khel Prang.

(13) Two others.

4. The Organization of this group was made in the Hujra of Jan Mohammad of Hassan Khel, Prang wherein Ghulam Akbar Commandar briefly spoke on the manifesto of the Organization. He said that they were servants of the Nation and would not hesitate in offering any sacrifice for the cause of the Nation and that it would be their duty to obey the directives of their High Command. All the participants expressed their willingness. Thereafter Ghulam Akbar Commander used to give training in parade for about 9/10 days continuously on the road in front of shop of late Baz Mohammad Blacksmith. I, however, did not participate in the parade due to my domestic engagements.

5. I attended most of the meetings and processions arranged by the NAP and Pukhtoon Zalmai in connection with the Civil Disobedience Movement last year. In September 1973, Ghulam Akbar Commander accompanied by Shah Hussain of Hassan Khel, Prang Sardar Alam and Spin Bacha nephew of Fasih Bacha, both of Babra knocked at my house. They informed me that they were going to cut a telephone wire near a Choti Bridge, Charsadda Road. I accordingly accompanied them. In Charsadda Bazar, we got into a green colour private car arranged by Sardar Alam and left for Choti Bridge. Near the Bridge the car was stopped. Sardar Alam cut two wires with plier from a pole standing in Sugar cane crop. It was about khuftan time. We left the wire on the spot and returned is the car.

6. During these days of Civil Disobedience, I accompanied Ghulam Akbar Commander and Shah Hussain worker of Pukhtoon Zalmai of village Hassan khel, Prang and arrived at Choti Bridge at about sunset time. We found Zarferosh Commander, Charsadda with two others of Charsadda, Sardar Alam Commander with Ihsanullah @ Surkai and Badruddin of Charsadda, Sardar Ali Commander of Charsadda with two others of Charsadda and Siddiq Khan informed us to wait there. It was about evening time when Hidayatullah District Commander Pukhtoon Zalmai arrived there in his red colour car. The car was being driven by a driver. He took out two bundles of rifles with two boxes of rounds from the car and handed over to Siddique Khan and Sardar Alam and his men who took it away. The car then left towards Charsadda.

7. About 4/5 month back a meeting was held in the Hujra of Mian Rabat Shah of Qazikhel which was attended by Wali Khan, Arbab Sikandar Khan, Pir Mohammad Khan Utmanzai, Akram Khan of Umerzai and late Baz Mohammad Blacksmith of Prang. I alongwith Sardar Alam and Bashir, Zarferosh Commanders of Charsadda, Bashir Prang and Commandar of Shahid Bazar and two other Commanders (names not known) of Jamatt, Roz Gul Commander of Tehsil Bazar Charsadda, Pir Ghulam Akbar of Babra Hassan Khel and Saddique Khan of Prang with three/four Private servants had also participated in the meeting.

8. Earlier Wali Khan, Arbab Sikandar Khan, Pir Mohammad of Utmanzai, Akram Khan of Umanzai, Baz Mohammad Blacksmith (late) and Mian Rabat Shah of Qazi Khel held a meeing in camera.

9. Siddique Khan also joined them.

10. After the above meeting, Pir Mohammad asked Sardar Alam Commander to prepare list of those Commanders and workers who were ready for sabotage activities and that they would be paid Rs. 1,000 for each explosion. He added that material for explosion would also be supplied by them. Sardar Alam replied in affirmative. I personally refused to take part in these activities.

11. Some two months back, Sardar Alam, Bashir and Sardar Ali Com manders met me in Bazar Charsadda at evening time. They asked me to accompany them to some business. I accordingly accompanied them and we reached Choti Bridge at Khuftan time. After some time, Pir Mohammad Khan arrived there in a car from Peshawar side. The car was being driven by an unknown driver. He took out a fertilizer bag from the Car which was containing bombs and grenades and handed over to Sardar Alam. Pir Mohammad left towards Charsadda by the car while we took the bag towards same to the Persian well of Mian Rabat Shah. I know nothing further as to whom Sardar Alam handed over the bombs and grenades."

12. The learned Special Court has relied only on the first part of this con fessional statement in which accused is alleged to have admitted his culpability in regard to cutting of telephone wires and thus we would also confine ourselves to the same position. Now the evidence of Sardar Mohammad Ayub Khan, M. I. C. (P. W. 9) is that accused was produced in his Court at 9-30 a.m. on 28-8-1974 for making confession, that he immediately got removed his handcuffs, removed the police officials from Court and questioned him if he was really prepared to make a statement and when he replied in affirmative, he gave him two hours to reflect, warned him that he was not bound to make any such statement, but in case he would make one, it would be used against him as evidence in the trial, that after two hours he again questioned him and warned him about the consequences of the statement which he was about to make. But he insisted that he was going to make a statement of his own free will without any coercion, intimidation, threat or any such consideration and it was thereafter that he recorded his confessional statement. His evidence would show that in regard to Shah Hussain (who was acquitted by the learned Special Court) he bad taken the same position. And in cross-examination, he denied the suggestion that, in the first place, none of the two accused had been produced in his Court at the time of which he had spoken in his examination-in-chief and, in the second place, their alleged confessional statements had already been typed by the investi gating agency and were placed before him oily for signatures. To his extreme embarrassment, however, Shah Hussain produced in Court F. C. Umar Shah of East Cantt. Police Station as defence-witness who from the Roznamcha of Police Station proved that on 14-9-1974 when Shah Hussain was being brought to his Court from Warsak in a police van, the van met with an accident at about 11-15 a.m. with Truck No. PRA-3953 at the crossing Shami Road, Peshawar Cantt. as a result of which the van was damaged. Now by this evidence, coming as it did from the official record of East Cantt. Police Station, Sardar Mohammad Ayub Khan, M. I. O. (P. W. 9) seems to have perjured himself, for in his examination-in-chief, he had insisted that Shah Hussain was produced in his Court at 10-00 a.m. on 14-9-1974 and he bad volunteered to confessional statement. Not only this, but even in his cross-examination, he assiduously espoused this position denying the contrary suggestion of defence counsel. And thus the learned Special Court was left with no option but to make against him the following observa tions:---

13. "This means that Shah Hussain accused was not and could not be pro duced before P. W. Sardar Mohammad Ayub Khan Magistrate on 14-9-1974 at 10 a.m. as stated by him (the Magistrate) in that accord ing to the defence evidence at 10 a m. accused Shah Hussain, in police custody, was somewhere on the way between Warsak and Peshawar and that he was also in the police van on Shami Road crossing Peshawar Cantt. at 11-15 a.m. when the said accident occurred and was, there fore, not in the Court room of P. W. Sardar Mohammad Ayub Khan Magistrate at the time. This shows that the certificate Exh. P. Y./1 is fare and this fact goes to the root of the prosecution case recorded by P. W. Sardar Mohammad Ayub Khan Magistrate on the day and time mentioned in the certificate Exh. P.Y/1 and as testified by the Magistrate himself, much less that it was a voluntary or true confes sional statement. This fact lends full support to the statement of Shah Hussain accused that the confessional statement Exh. P. Y. was prepared by the police in P. S. East Cantt. The fact is that Shah Hussain accused was involved in the said accident with respect to which a report was lodged in Police Station East Cantt, Peshawar, as stated above. Therefore, the presence of Shah Hussain accused in P. S. after the said accident but before he was produced before P. W. Sardar Mohammad Ayub Khan, Magistrate on 14-9-1974 becomes obvious.

14. The result is that I am of the view that Exh. P. Y which purports to be the confessional statement of Shah Hussain accused was not made, much less taken in accordance with law and no presumption of truth can be attached to it. In the presence of the defence evidence, the prosecution attempt to get it proved through P. W. Sardar Mohammad Ayub Khan Magistrate has miserably failed. In fact, Sardar Mohammad Ayub Khan Magistrate has been belied by the above mentioned fact."

15. Having expressed itself thus and disregarding the confessional statement of Shah Hussain, the learned Special Court nevertheless accepted the evidence of Sardar Mohammad Ayub Khan in regard to confessional statement of accused believing it to be voluntary and true and in that regard based its finding on the following dictum appearing in two judgments, one from Lahore High Court in the case of Muhammad Naeem v. Crown (P L D 1950 Lah. 507) and another in the case of Joygun Bibi v. State of Supreme Court of Pakistan :-

16. "The retraction of the confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequence of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated . . . . . The retraction of the confession is wholly immaterial once it is found that it was voluntary as well as true."

17. With this legal position, which in view, of a century-old experience is mow well-entrenched in the criminal jurisprudence of this country, there can be no dispute. But the learned Special Court seems to have failed to -take note of another salutory principle enunciated in these and a plathora of other judgments that even if a retracted confessional statement is found to be voluntary and true, still the demand of prudence would be not to make it the sole basis of a conviction unless it is corroborated by some circumstance aliunde. Had the learned Court perused the two judgments on which it relied, it would have seen that the retracted confession of accused in the Lahore case was found to have been corroborated by, amongst others, Ghulam Nasir (P. W. 19), Muhammad Ashraf Inspector C. I. A. (P. W. 3.7) as well as unimpeachable circumstantial evidence. Whereas in the case of Supreme Court, in which the retracted confession of another accused was sought to be used against accused Joygun Bibi, corroborative evidence was found in the statement of P. W. Zohra, a maid servant of Joygun Bibi and other circumstances. Regardless of the head-notes of these two judgments therefore, it is obvious that the conviction of accused in both these cases was not based only on their retracted confessions. And thus, the learned Special Court seems to have missed the ratio of these judgments.

18. Be that as it may, let us look into the retracted confessional statement of accused to see if, in the first place, it was made voluntarily and if so whether it had a ring of truth in it to inspire confidence so as to be good enough per se to form the sole basis of his conviction, and finally, in case it needed corroboration whether such confirmatory evidence was available. We have borrowed these words from a latest judgment of Supreme Court of Pakistan in the case of Dhani Bakhsh v. The State (P L D 1975 S C 187), in para. 8 of which would be found the following dictum in regard to the efficacy of a retracted confession :-

19. "Taking first the judicial confession, it is well settled that although a retracted confession is seldom made the basis of conviction without being materially corroborated (underlining* is by us) yet the position though very rare is not wholly inconceivable depending on the facts and circumstances of each case , . . . ."

20. Now the law laid down in this passage, which in fact would appear to, have re-stated a well-settled legal position, is that a retracted confession is seldom made the basis of conviction without being materially corroborated, yet in view of the facts and circumstances of a given case an accused can be convic ted on his retracted confession if, to borrow the words of their Lordships, it was voluntary and had a ring of truth in it to inspire confidence. A perusal of that judgment would show that their Lordships doubted the truth of retracted confessional statement of accused mainly because it was recorded right in, view of his co-accused who was sitting at a distance of 30 feet. Having noticed this circumstance, however, their Lordships went through the evidence on record and discovered quite a few features which were discrepant with what had been said in the retracted confessional statement. And. therefore, they disregarded the statement and finding no other evidence: against accused, acquitted him.

21. Now by taking into consideration this well-established principle, the-, case in hand was evidently of the type in which, without any corroboration,, the learned Special Court should have refrained from convicting accused only on the basis of his retracted confession. It should have realized that once the credibility of Sardar Muhammad Ayyub Khan M. I. C. (P. W. 9) who had allegedly recorded the confessional statement of latter, by authentic documentary evidence coming from the record of East Cantt Police Station Peshawar, he should have been disbelieved in regard to the statement of accused unless it could lay its hands on, some corroborative evidence aliunde. In point of fact, the perjured evidence of this judicial officer was a circumstance which should have put the Court on guard not to accept his uncorroborated evidence in regard to accused-especially when there existed no such evidence to show that his retracted confession was true: in material respects. On our part, therefore, we cannot conceive of a better case than the case in hand in which this salutary principle, which the Superior Courts of the country have been reiterating for over a century, should have guided the learned Special Court in evaluating the worth of retracted confession of accused. But unfortunately, it was disregarded.

22. The evidence of Sardar Muhammad Ayyub Khan would show that in, cross-examination it was firmly suggested to him more than once that accused was not produced before him at the time of which mention was made in his alleged confessional statement as also that the said statement: had already been typed by police and placed before him for his signatures. But he denied the suggestion. By taking his evidence into consideration as whole, however, his said denial would appear to be incorrect. In answer to a question whether he had recorded the alleged confessional statement of accused with the aid of his own stenographer and the typing machine of his own Court, be replied in negative saying:-

23. "It is correct that while recording either of the two confessional state ments mentioned above, we had acquired type writer as also typist from other sources as the type-writer of my own Court was not in proper order nor my steno-typist was proficient enough to take dictation properly. He was a new hand. I do not remember as to wherefrom, the type-writer and the stenographer were acquired but normally the reader of my Court makes arrangements in such like urgency . . . ."

24. It should be noted that one of the two confessional statements, to which Sardar Muhammad Ayyub Khan referred in this part of his evidence, was, that of Shah Hussain accused respecting which, however, he was disbelieved by the learned Special Court. Not only this but the two confessional statements were allegedly recorded by him on different dates, namely, 28-8-74 (in so far as accused is concerned) and 14-9-74 in the other case. And yet he would like the Court to believe him that during all this period the typing, machine of his Court had remained out of order as also that due to the inexperience of his stenographer, he had procured his substitute from other sources of which, however, he was not aware. In these circumstances, and especially when in regard to the alleged confessional statement of Shah Hussain the witness was found to have perjured himself, the learned Special Court should have asked the prosecution to produce in Court at least then borrowed stenographer. But unfortunately, nothing of this sort was done which, in the result, must be held to have caused a grave prejudice to accused.

25. Now by looking at the alleged confessional statement of accused in the context of these doubtful premises, there would emerge quite a few features which would appear to becloud its truthfulness. In the F. I. R. and the evidence of P. Ws. what was mentioned was that four, telephone wires were found cut at the place of occurrence. But in his confessional statement, the accused has mentioned only two wires. Similarly, in the evidence of S. I. Madad Khan, accused and Shah Hussain both were said to be commanders of Pakhtoon Zalmai for village Hassankhel: But in his confessional statement accused has not owned this position saying as if he was an ordinary worker of this militant organization. In this view also therefore, the retracted judicial confession was not of the type: which should have been accepted without corroboration. And thus should have been disregarded.

26. Frankly, we have not been able to comprehend as to why would accused volunteer to make a confessional statement. The prosecution's own case is that he not only belonged to the militant organization of Pukhtoon Zalmai, but was the commander of it for village Hassankhel, Tehsil Charsadda. Now if in an organization of this type the accused was able to attain the rank of a commander, it is obvious that he would belong to the hardcore and as such must have passed the rigorous tests which are normally the wont of all militant organizations. To believe, therefore, that he volunteered to make a confessional statement within 7 days of his remand in police custody would be unthinkable unless, of bourse, be had been subjected to pressure by police about the deleterious disposition of which the Supreme Court of Pakistan had the occasion to take judicial notice in the case of Abdul Rahman v. The State (PLD 1975 SC 275).

27. The learned Assistant Advocate-General, however, argued that in view of section 8 of the Act the burden of proof in this case lay on accused to show that he was innocent. But this is not correct. This section reads as under :-

28. "Burden of proof.-Where any person accused of having committed a, scheduled offence is found to be in possession of, or to have under his control, any article or thing which is capable of being used for, or in connection with, the commission of such offence, or is apprehended, in circumstances which tend to raise a reasonable suspicion that he has committed such offence, he shall he presumed to have committed the offence unless he can prove that he had not in fact committed the offence."

29. It is not the case of prosecution that the accused was found to be in possession or to have under his control any article or thing which was capable of being used for, or in connection with the commission of such offence, or was apprehended, in circumstances which tend to raise a reasonable suspicion that he had committed such offence. In point of fact, the only accusation against him was that in conspiracy with other accused, he had cut four telephone wires from the place of occurrence. But admittedly he was apprehended on that charge after about one year by Inspector Jaidad Shah of East Cantt. Police Station, Peshawar when one Murad, an accused in another case under the Act, named him for the crime. In other words, he .was not arrested in circumstances which would tend to raise a reasonable -suspicion that he-had committed the offence and thus the prosecution could ,not possibly take advantage of the section.

30. For all these reasons, therefore, we are satisfied that, in view of the peculiar facts and circumstances of this case, the retracted confession of accused could not have been made the sole basis of his conviction without any corroboration. In this view, this appeal is allowed the conviction and sentence of appellant is set aside and it is directed that he shall be released forthwith unless required in some other case.

31. K. B. A. Appeal accepted.