AHMED SAEED alias Bharam alias Nagori Versus State

JAMAL KHAN MANDOKHAIL, J.--- Facts in brief are that on 01.10.2009, Syed Afzal Hussain Zaidi received an information that some unknown persons committed murder of his brother Syed Ibrar Hussain, hence, he registered an FIR No. 330/2009 at Police Station Nabi Bux, Saddar Town, Karachi. The matter was investigated but, with no positive result. However, after a considerable period of time, on 21.06.2016, Ch. Tariq Mehmood, SIP (PW7) received a letter from SSP Investigation Zone-II, South Karachi, that the appellant who was detained by the Rangers for ninety days under section 11EEEE of the Anti-Terrorism Act, 1997 ( ATA of 1997 ) , disclosed that he was involved in the murder of Syed Ibrar Hussain. The Rangers handed over custody of the appellant to the Investigating Officer ( I.O. ) , who arrested him accordingly. During the investigation, on an application of the I.O., the Magistrate recorded his confessional statement under section 164, Cr.P.C. on 27.06.2016. Upon completion of investigation, the I.O. submitted a report under section 173, Cr.P.C. before the Judge, Anti-Terrorism Court IX, Karachi ( Trial Court ). The Trial Court on 13.06.2017 convicted the appellant under section 7(1)(a) of the ATA of 1997, read with section 302, P.P.C. and sentenced him to imprisonment for life, with forfeiture of property, and to pay fine of Rs.100,000/-, in default whereof, to undergo RI for one year, with a benefit of section 382-B, Cr.P.C. The appellant preferred an appeal before the High Court, which was dismissed vide judgment dated 20.05.2019, hence, the appellant filed a jail petition before this Court, wherein leave to appeal was granted on 21.12.2022 in following terms:

3.Leave to appeal is granted to consider the above-mentioned points, amongst others. Office is directed to prepare the appeal stage paper books with liberty to the parties to file additional documents which were part of the record have not been filed.

2. Arguments heard and have perused the record. Though, it was a daylight occurrence, in a thickly populated area, but, no one came forward in support of the prosecution s case. There is also no circumstantial or forensic evidence on the record to connect the appellant with the alleged offence. The complainant did not set up a motive of the murder. The prosecution s case converges only upon a judicial confession attributed to the appellant, which alone formed basis for the conviction of the appellant. It is, therefore, imperative to examine with utmost care, caution, and circumspection whether such confession satisfies the well-settled requirements of law, namely, was it voluntary, true and confidence inspiring, particularly when it was retracted. A foundational infirmity in this case concerns the manner in which the appellant was made an accused in this case. It is a fact that after about six years of the registration of the FIR, the appellant was in the custody of Rangers under preventive detention under section 11EEEE of the ATA of 1997. In this behalf, notification from the Federal or a Provincial Government was required, enabling the law enforcers to detain the appellant for a period, not exceeding three months, after recording reasons thereof. The record does not reflect any such notification to justify the preventive detention of the appellant by the Rangers. However, it is alleged that during his custody, the appellant admitted his guilt before the Rangers, consequently, his custody was handed over to the police on 21.06.2016, which is the date of his arrest in this case.

3. The appellant remained in the police custody for eight days, whereafter, his statement under section 164, Cr.P.C. was recorded, wherein he allegedly confessed the guilt. A confessional statement is an admission of guilt by an accused before a Magistrate, during the course of investigation, which must be voluntary and true. Section 364, Cr.P.C., read with the High Court Rules and Orders, mandates that before recording a statement, the Magistrate must satisfy himself that the accused is making voluntary and true statement by questioning him to ensure that the accused is free from influence, pressure, inducement, threat, or any sort of compulsion. The Magistrate must clearly explain to the accused that he is not bound to make a statement and that if he does so, it may be used against him as evidence and should provide him adequate time for reflection. The statement shall be recorded in the language in which he is examined, which shall be interpreted to him in a language which he understands. After observing all the mandatory precautions, as provided by section 364, Cr.P.C., the statement shall be signed by the Magistrate and the accused. Non-compliance of the provisions of section 364, Cr.P.C. is incurable illegality and vitiates the evidentiary value of statement recorded under section 164, Cr.P.C.

4.The manner in which the judicial confession of the appellant was recorded is significant. A close reading of its contents indicates that it is structured in a mechanical and sequential form, containing references not only to the present occurrence, but also to multiple other criminal cases, along with their specific dates, times and details. The confessional statement contains names and number of persons allegedly murdered. In the statement, such a minutely detailed narration in respect of number of occurrences, their exact dates, months and years, with their respective places appears to be unnatural. It raises a strong inference that the alleged confession of the appellant was pre-meditated and concocted by the police, rather than a genuine voluntary and true admission of guilt. Besides, copy of the statement produced in the Court as Ex.9-B, titled as, On Oath Statement under section 164 Cr.P.C confirms the fact that it was recorded on Oath. An Oath bounds an accused to tell the truth against himself, under religious and moral compulsions. Article 13(b) of the Constitution of the Islamic Republic of Pakistan, 1973 ( Constitution ) protects a person, accused of an offence, against self-incrimination, which reads as under:

No person:-

The statement of the appellant recorded under section 164, Cr.P.C. on Oath amounts to compulsion, which is in violation of the fundamental right of the appellant within the meaning of Article 13(b) of the Constitution. Such a statement ceased to be voluntary, therefore, becomes inadmissible in evidence. Moreover, there is no clear indication that the appellant was afforded considerable time for reflection or that the Magistrate took effective steps to ensure that he was completely out of the influence of the Rangers and the police. An unexplained custody of the appellant with Rangers and thereafter, eight days in police custody, before recording the confession suggests a credible risk of external threat, influence and pressure. Despite the prolonged detention of the appellant with Rangers and police, there is no explanation from the Magistrate that he was satisfied that the statement was voluntary and true. Another important aspect is that the statement is typed in English and consists of nine pages. Except the last page, none of the remaining pages contains signatures of the Magistrate and signatures or thumb impression of the appellant, which is a condition precedent under section 364, Cr.P.C. It is also important to mention here that the alleged statement reflects names of some other persons. The Magistrate did not explain whether he accepted such portion of the statement of the accused as correct or otherwise? If the Magistrate was of the opinion that the involvement of other persons named by the appellant was true and correct, then subsection (2) of section 164, Cr.P.C., requires the Magistrate to provide opportunity of cross-examination to those persons. Or, if the Magistrate was of the view that such portion of the statement of appellant was untrue, he was not bound to record the same. Section 364, Cr.P.C. does not prevent a Magistrate to refuse recording of irrelevant portion of a statement recorded under section 164, Cr.P.C. The record does not convincingly indicate that the mandatory requirements provided by sections 164(2) and 364, Cr.P.C. were strictly adhered to by the Magistrate. The absence of strict mandatory compliance with these procedural safeguards is an illegality, which further undermines the reliability of the confession.

5.Another important aspect which cannot be lost sight of, is that the appellant retracted his confession and a retracted confession and as a rule of prudence, such statement required independent corroboration in material particulars before it can be relied upon for conviction. In the present case, the prosecution has failed to bring on record any ocular account or circumstantial evidence corroborating the retracted statement of the appellant recorded under section 164, Cr.P.C. The statement lacks corroboration from any other source, to establish it as voluntary and true, hence, legally, it is incapable of serving as the basis for the appellant s conviction for a capital offense. It is a settled principle of criminal jurisprudence that a confession, if found to be involuntary or untrue, or even where it is considered voluntary and true by the Court but subsequently retracted and remains uncorroborated, cannot, by itself, form the sole basis of conviction. The fora below have failed to dilate upon the fact that the statement of the appellant was neither voluntary nor true. Both the Courts have wrongly convicted the appellant on the sole retracted confessional statement. Convicting the appellant for a capital charge upon a retracted, involuntary and untrue statement is contrary to the golden principle of natural justice and law.

6.Without prejudice to the above, even otherwise, the investigation conducted in the case suffers from serious deficiencies and prejudices. The Investigating Officer (PW-5), while appearing before the Court, admitted during cross-examination that right from 2009 upto 2016 the present murder case was a blind case as none was nominated in it as an accused. It is a fact that right from the 2009 up to 2006 (sic) no any investigating officer found any incriminating evidence against the accused in the present case. It is a fact that previously the present case was disposed of under A-class . A case is to be disposed off under A class if there was the lack of evidence . This admission, coming from the Investigating Officer himself, clearly establishes that for a substantial period of more than six years, nothing was found against the appellant, as a result whereof, the investigation remained dormant. His arrest by the Rangers was not as a result of the FIR, rather, he was under a preventive detention, foreseeing future wrongdoing. It was alleged that during his custody, the appellant pleaded guilty before the Rangers, but the I.O. did not record a statement of any of the officials from amongst the Rangers in this behalf. No concrete effort was made by the I.O. to make out a case against the appellant. So far as the medical evidence adduced by the prosecution is concerned, it merely enables the Court to decide and determine the nature and cause of death. It is not a source to prove the charge against the appellant.

7.While recording the statement, the Magistrate mentioned on behalf of the appellant that the appellant committed all the acts mentioned therein, on the instigation, consultation and direction of the person named in the said statement. The Magistrate did not give explanation whether he believed the statement of the witness to such extent? If so, it was a serious charge against those persons, therefore, under section 164(2) of the Cr.P.C., it was necessary for the Magistrate to have called all those persons with an opportunity to cross examine the appellant, but the needful was not done, which is a violation of the law. A question arises that what had compelled the Magistrate for incorporating such portion of the statement of the appellant. By doing so, the Magistrate has damaged the reputation of the respectable citizens of the country and tarnished their image in the eyes of the public. During the arguments, we have been informed that they are seasoned politicians and presently some of them are holding government portfolios. This is unfortunate that the politicians in general and the Parliamentarians in particular, are so vulnerable that they can be made accused of even capital charges, without any justification, with mala fide intention, by a public servant. The Parliamentarians represent people of their respective constituencies, therefore, the Magistrate was supposed to be vigilant and should have remained within the parameters of section 364, Cr.P.C., but he has ignored this important aspect of the matter and continued to incorporate their names in the statement.

It is a settled principle of law that a statement recorded under section 164, Cr.P.C. has to be accepted or rejected as a whole. The Courts cannot pick and choose, by accepting the parts that implicate the accused. Surprisingly, the Trial Court as well as the High Court without considering the established criminal jurisprudence, have relied upon the statement in toto. In practical, it means that the fora below accepted that portion of the statement of the appellant in which, names of the above mentioned persons were incorporated in the statement, with their specific roles. During the course of trial, the Courts below have since accepted the alleged confessional statement in its entirety, without calling the nominated persons to provide them an opportunity of due process and fair trial to defend themselves. This act of both the Courts violated the fundamental right of those persons guaranteed by Article 10A of the Constitution. It was necessary because such statement could have been misused against them in future. Even, such allegations have no corroboration, as such, cannot be accepted as true and correct, but both the Courts have failed to dilate upon this aspect of the statement as well.

Thus, in view of the above, we are of the view that the prosecution has failed to prove its case against the appellant beyond a reasonable doubt. Both the fora below have come to a wrong conclusion. Their judgments are therefore, not sustainable.

These are the reasons of our short order dated 10.03.2026, which is reproduced herein below:

MH/A-6/SC Appeal allowed.