Ejaz Afzal Khan, J.--On the day of occurrence Zahidur Rehman Qureshi abductee alongwith his servant Din Muhammad, P.W. were asleep in the Rest House near Chishma that some one by standing alongside the barbed wire around the Rest House awakened them by raising his voice.
When the P.W. at the instance of the abductee proceeded towards that person, he found 5 other persons accompanying him. The said persons demanded water for ablution from him which was accordingly given:and thereafter they were also served with tea. In the meantime, the abductee had been conversing with them in the Pushto. After some time, the abductee decided to take them to a place known Kundal on his Jeep, notwithstanding the fact that the P.W. expressed serious suspicion about them and restrained the abductee from going alongwith them. When the abductee did not come back even after the lapse of 5 hours, the P.W. reported the incident with the Police which culminated in the registration of a case under Section 365-A/ 148/149/109 PPC. read with Section 7 A.T.A., vide FIR No, 64 dated 25.7.2002 in the Police Station Kirri Khaisoore.
2. Though the abductee so called returned on the same day and charged none, as according to his statement he could not identify any one of them responsible for his abduction, none-the-less, the Police being more royalist than the monarch continued its pursuit for the person responsible for the incident. On 31.7.2002 they produced Muhammad Shakeel, appellant in Cr. A. No, 11/2003 who had been in Police custody for 11 days, before a Magistrate for recording confessional statement which was accordingly recorded. According to the said confessional statement the appellant admitted his complicity in the act of abduction of the said Zahidur Rehman Qureshi. The Police Investigating the case also formally arrested the appellant from Jail, in the case, interrogated him, who subsequently on being produced before the S.P. confessed his guilt and also charged Sikandar Shah, appellant in Cr. A. No, 9/2003 as one of his privies in the commission of the alleged abduction.
3. The Police after completion of the investigation, sent the appellants mentioned above to the Anti-Terrorism Court for trial who on its completion sentenced them to imprisonment for life under Section 365-A/34 PPC. and imprisonment for life under Section 7-E for the A.T.A. 1997 and ordered both the sentences to run concurrently, vide his judgment dated 23.1.2003. Hence these appeals which are disposed of by this single judgment.
4. The learned counsel appearing on behalf of the appellant contended that participation of appellant Muhammad Shakeel in the commission of the crime is belied by the very confessional statement on the basis whereof, he was taken into custody and interrogated in this case, as according to it he had been in Police custody for 11 days till 31.7.2002, the date on which it was recorded before the Magistrate. The learned counsel next contended that the charge against appellant Muhammad Shakeel flows from the confessional statement which has not been corroborated by any evidence and that it being the result of duress and torture brought to be born on him during his prolonged custody is neither true nor voluntary, therefore, it is not safe to convict him in a case entailing capital punishment on the strength of such type of confessional statement especially when it has been retracted. The learned counsel by referring to the evidence of identification parade contended that when the appellant was admittedly seen by the P.Ws. before it was held, it being unmeaning has no probative force whatever.
5. The learned counsel appearing on behalf of Sikandar Shah, appellant in Cr. A. No, 9/2003 by referring to Article 43 of Qanun-e-Shahadat Order X of 1984 contended that the confessional statement of a co-accused being a weak circumstantial evidence cannot warrant conviction unless it is corroborated by independent and un-impeachable sources in material particulars. The learned counsel next contended that since corroboration is completely wanting, it is not safe to hold him guilty in the instant case.
6. The learned D.A.G. appearing on behalf of the State by referring to the case of Raz Muhammad vs. The State (P.L.D. 2002 SC 56), contended that confessional statement alone if found, voluntary and true is sufficient to justify conviction notwithstanding its subsequent retraction.
7. We have gone through the record and carefully considered- the submissions of the learned counsel for the parties.
8. A perusal of the evidence would reveal that the entire affair from the very inception seems to be a `Darama' rather than an actual occurrence. When the abductee himself neither charged nor expressed suspicion against any body, what was that extra ordinary that the police continued its pursuit to trace and track down the person responsible for the commission of this crime. It is no doubt commendable that the police of their own considered it . as their professional duty to trace the actual culprit behind the crime but in their over excitement in this behalf led them to pin crime on a person whose participation in the crime was a physical impossibility when according to the confessional statement recorded by the Magistrate he had been in the Police custody from 20.7.2002 to 31.7.2002 and this period includes the date on which the occurrence took place.
9. What were the reasons justifying suspicion as to the complicity of the appellant in the crime is nothing but a wild goose chase as no answer let alone a satisfactory one has been given by the prosecution. The prosecution was bound to explain the circumstances justifying such suspicion even though for the sake of argument, the person suspected turns out to be an actual culprit particularly when the charge against the accused emanates from no other source except his confessional statement. When the evidence in this behalf is woefully lacking, the only inference which can reasonably be drawn in the circumstances of the case is that the Investigating Officer after failing to find the actual culprit found a figure-head in the appellant to show their performance and efficiency.
10. The identification of the appellant during the identification parade so called will also in no way improve the case of the prosecution when admittedly the P.Ws. had the opportunity of seeing the appellant before it was held. The story as to the ransom also appears to be no better than a cock and bull story when it was not mentioned in the earlier statement and as such it was an additions to and improvements on the original version set forth in the FIR. The very tenor of the story on the face of it shows that it was contrived by the complainant and his cohorts for some ulterior motive best known to them.
11. The confessional statement of appellant Muhammad Shakeel recorded by the S.F. Investigation which is the only evidence so called connecting him and his co-accused with the crime, also does not appear to be free from the taint of torture, duress and manipulation as again he was taken into custody on 31.7.2002 without providing him a place to pause and a moment to breath particularly when it was recorded after a prolonged custody of 17 days.
12. Apart from this, the concluding part of his confessional ! statement that he made a mistake and be pardoned will inevitably lead to the conclusion that the impression caused by inducement, threat and promise during his prolonged custody as mentioned above, was not fully removed which is sine qua non for its relevancy leaving aside its I admissibility in view of the provisions contained in Article 41 of Qanun-eShahadat Order.
13. The ocular account of the occurrence is also worth noting in this case as it does not tend to incriminate any of the appellants, besides the fact that it is bristling with paralytic doubts and infirmities.'
14. When considered against this back-drop we are of the firm and considered view that the prosecution has miserably failed to prove the guilt of the appellants beyond any shadow of doubt, therefore. we feel constrained to allow these appeals set aside the conviction and sentence recorded by the learned trial Court and direct their release forthwith, if not required in any other case.