GHULAM RABBANI, J.- This appeal is directed against the judgment dated 7.10.2003 passed by learned Judge, Anti-Terrorism Court-II, Sukur whereby appellants were convicted and sentenced as follows:
(i) Under Section 365-A read with Section 149 PPC to suffer imprisonment for life and their movable and immovable properties forfeited to State.
(ii) Under Section 7(e) Anti-Terrorism Act, 1997 to suffer imprisonment for life and their movable and immovable properties forfeited to State.
(iii) Under Section 13(d) Arms Ordinance appellant Sajjad Ali to suffer R.I. For five years and to pay Rs.50,000/- as fine, in default whereof to suffer further R.I. For one year more.
(iv) All the sentences awarded as above to run concurrently with benefit of section 382-B, Cr.P.C, extended to appellants.
2 Briefly stated the prosecution story is that on 18 1.2001 at 2215 hours, while the complainant in company of his father P.W Dr. Amanullah, his brother P.W Misbullah and his friend P.W Shahid Hussain were on their way in a car to drop P.W Dr. Amanullah at his clinic; near Makrani Mosque at about 2215 hours, a white colour Toyota car carrying five culprits with open faces came round from wrong side and pulled up in front of their car forcing them to stop it. One of the culprits kept sitting inside while the remaining four of them duly armed with Kalashnikov rifles and TT pistols came out from the said car and by show of force dragged out P.W Dr. Amanullah and abducted him in their own car for ransom. Later, on next day i.e. 19.1.2001 at 0030 hours on report of complainant Irfanullah Bhurgi, a crime was registered under Sections 365-A, 506, 148, 149 PPC and 13(d) Arms Ordinance read with Section 7(b) of Anti Terrorism Act, 1997, against unknown culprits.
3. Appellants and other culprits namely Jan Muhammad and Muhammad Saleh were arrested of whom confessional statements of appellants were recorded before the Magistrate during course of investigation of crime. An unlicensed TT pistol was recovered from appellant Sajjad Ali for which a separate crime bearing No. 14/2001 under Section 13(d) Arms Ordinance was registered on 12.12.2001. Appellant Sajjad Ali was also put to identification test on the next day of his arrest viz. On 13.12.2001 and identified by complainant Irfanullah, P.Ws Masihullah, Shahid Hussain and abductee Dr. Amanullah who had already been released by dacoits on 8.2.2001.
4. After completion of investigation, challan was submitted against all the above-named accused along with other absconding accused namely Anwar Sheikh, Syed Dost Ali Shah, Wahid Bux, Haji alias Sanaullah alias Khamiso Bhayo, Abdul Nabi Noon, Allah Dino alias Shero Shambani, Sikandar Ali and Bahu Khan Bhayo under Section 365-A, 120-B, 506, 109, 148, 149, 13(d) Arms Ordinance and Section 7 of the Anti-Terrorism Act, 1997. A separate challan under Section 13(d) Arms Ordinance was also submitted before the Trial Court against appellant Sajjad Ali; however, by an order dated 27.3.2001 both the cases were amalgamated for joint trial within terms of Anti Terrorism Act, 1997.
5. Subsequently, co-accused Anwar Shaikh, Syed Dost Ali Shah and Wahid Bux were arrested while others remained in abscondence and were declared proclaimed offenders for whom proceedings under Section 87 and 88 Cr.P.C, were initiated and publication was also made in three national newspapers within terms of Anti- Terrorism Act, 1997. Mr. Abdul Latif Memon, a Senior Advocate was appointed on their behalf on State expenses.
6. On 12.11.2002 charge was framed against appellants and other accused persons under Section 148 PPC, 365-A, 120 B, 109, 506-2 read with Section 149 PPC and Section 7(e) of the Anti-Terrorism Act, 1997. Against appellant Sajjad a charges was also framed under Section 13(d) Arms Ordinance.
All the appellants and other accused namely Jan Muhammad, Muhammad Saleh, Anwar Sheikh, Dost Ali and Wahid Bux pleaded not guilty to the above charge and claimed to be tried.
7. During the course of trial, prosecution examined in all eleven witnesses and then closed their side. Hence it may be noted that accused Jan Muhammad Bhatti expired in the Jail during course of trial hence proceedings against him abated.
8. Statements of appellants and other accused under Section 342, Cr.P.C, were recorded in which they denied the allegations of prosecution and stated that they were falsely implicated. Appellants retracted from their judicial confessions. Appellant Sajjad Ali stated that only his signature was obtained on a white paper, ln addition, he stated that his name is Ali Asghar Buriro and that the so- called Sajjad Ali was his elder brother who expired on 10.7.1999 in village Jandal Buriro and in support of this statement he produced photo copies of School certificates. He further stated that the unlicensed TT pistol was foisted upon him. Appellant Ali Khan denied if his confession was recorded. Appellant Liaquat Ali stated that only his signature was obtained on white paper and appellant Ahmed Ali alias Ali Ahmad while admitting the signature on his confessional statement, stated that the same was managed by police. They stated that none of witnesses deposed against them. The appellants and other accused neither examined themselves on oath nor they examined any other defence witness in their support. Learned Trial Court in the above background of the matter heard arguments of learned counsel for the parties and passed the judgment impugned, whereby appellants were convicted and sentenced, as above, while other accused were acquitted by giving them benefit of doubt.
9. We have heard Mr. Habibullah Shaikh, learned counsel for the appellants and Mr. Mumtaz Ali Siddiqui for the State, lt may be noted that Mr. Sheikh, at the outset, stated that he did not press this appeal on behalf of appellant Sajjad Ali while Mr. Siddiqui representing the State wavered in his view, ln the first instance, he stated that except appellant Sajjad Ali he did not support conviction and sentence awarded to other appellants; and then, he took a some result and stated that even the prosecution had failed to prove the case against appellant Sajjad Ali and said that he, too. Was entitled to acquittal.
10. Mr. Habibullah Sheikh in his arguments contended that the case of prosecution against - appellant Sajjad Ali, Ali Khan Umrani, Liaquat Ali Mahar and Ahmed Ali alias Ali Ahmed Bhayo rested on their confessional statement, ln addition, he argued that the confessional statement of co- appellant Sajjad Ali Buriro was supported by ocular evidence and circumstantial evidence; such as, complainant Irfanullah, abductee P.W Doctor Amanullah and P.W Maihhullah identified him as one of the culprits during the course of his identification test before the Magistrate. He was also identified by them in the Court; an unlicensed pistol was recovered from him, while there was no such corroboratory evidence available against other three appellants, therefore, he did press this appeal on his behalf. Mr. Sheikh, however, contended that the confessional statements of other three appellants were neither voluntary nor true and the same were inadmissible as a piece of evidence. Mr. Sheikh contended that the confessional statements of other appellants when considered inadmissible, the confession of appellant Sajjad Ali wherein, he implicated other appellants could not be made a basis for their conviction' more so, without any other corroboratory evidence lacking in this case, ln support of his contentions, he placed reliance on the case of The State Vs. Minhun alias Gul Hassan (PLD 1964 SC 813), the case of Arif Nawaz Khan and 3 others Vs. The State (PLD 1991 FSC 53), the case of Javed Masih and 3 others Vs. The State (PLD 1994 SC 314), and the case of Faqir Ullah Vs. Khalil-uz-Zaman and others (1999 SCM R 2203).
11. Ln the light of arguments of both the learned counsel, we. Have scrutinized the record with great caution. Ln the first instance, we take-up the case of appellant Sajjad Ali in view of the conflicting stance taken by Mr. Siddiqui, learned counsel for the State. The said accused was arrested on 12.12.2001 and at the time of his arrest a TT pistol with magazine containing five live bullets were recovered from him in presence of mahsirs, which recovery was proved through P.W PC Shahzaman and P.W Muhammad Anwar, the SHO of Police Station A-Section, Sukur. P.W Shahzaman, who acted as Mashir of recovery, in his deposition stated that SHO recovered from this accused a TT pistol which was containing magazine with five bullets and that the accused disclosed that the said pistol was without any licence. The pistol was in working order, the witness added. He stated further that such mashirnama was prepared at the spot and SHO had obtained his signature and that of PC Niaz Hussain. P.W Muhammad Anwar supported the above statement of PC Shahzaman. Lt may be stated that on the next day of his arrest appellant Sajjad Ali was put to identification test held before Mukhtiarkar & FCM, Sukur in which, he was identified by complainant Irfanullah, who in his cross-examination stated he had told the Mukhtiarkar about this accused in identification parade that he was sitting on Driver seat in the car at the time of incident, which side of the car, was visible to them. He was identified by P.W Doctor Amanullah, who is abductee, ln his deposition, he stated that he had identified accused/appellant Sajjad Ali. The afore-said witness further stated that accused Sajjad Ali was known to him prior to this incident as his brother Fida Hussain was Driver of his car and that he came to know from co-accused Kasmsio about' the name of accused Sajjid. P.W Masihullah in his deposition, too, stated that he had identified accused Sajjad Ali in identification parade, ln addition to above, it is noted that in Court, too, all the above three eye-witnesses identified appellant Sajjad Ali Buriro. Besides above prosecution examined P.W Aijazul Hassan who, as a Magistrate First Class, had held identification parade, ln his evidence, he stated that on 13.12.2001 he was posted as Mukhtiarkar & FCM. Sukur when the SHO, Police Station A- Section, Sukur produced accused Sajjad Ali arrested in crime No. 05 of 2001 of the said Police Station for holding identification parade through prosecution witnesses Irfanullah, Amanullah, Masihullah and Shahid Hussain. This witness stated that the said P.Ws correctly identified him. This appellant also made confessional statement before the Magistrate First Class acknowledging that he along with co- accused Abdul Nabi, Allah Dino alias Sher Shambani, Anwar Sheikh and Haji Kori abducted P.W Dr. Amanullah. He acknowledged that on 18.1.2001 the conspiracy of abduction of Dr. Amanullah was hatched at the otaq of Liaquat Mahar after arrival of appellants Ali Khan Umrani, Liaquat Mahar, Haji Kori alias Khamiso Bhayo who had reached there in the car of co-accused Syed Dost Ali Shah used in abduction of above-named abductee. Appellant Sajjad Ali stated in his confessional statement that appellant Liaquat Ali Mahar had provided to Klashnikovs and one bag of bullets; one Klashnikov was taken by co-accused Abdul Nabi and other by Allah Dino alias Sher Shambani while he and other two accused had TT pistols and that he had driven the car. He further stated that after abduction, the abductee was taken to Shikarpur where under the instructions of co-accused Babar have, he was handed over to co-accused Jan Muhammad Bhatti and Saleh Bhatti where appellants Ali Ahmad Bhayo, Ali Khan Umrani and co-accused Sikandar Leghari were present. He admitted in his confessional statement that police had recovered from him at the time of his arrest an unlicensed pistol which was used in commission of crime. Admittedly, this appellant has retreated from his confessional statement, but what we note is that his confessional statement has been corroborated by ocular evidence of complainant, abductee Dr. Amanullah Bhurgri and P.W Masihullah who not only identified him in identification test ,held before the Magistrate, but, identified him in Court, as well, to be an accused. Here, it may be stated that it is well- settled rule of evidence that unless retracted confession is corroborated in material particulars, it is not prudent to base a conviction in a criminal case on its own strength alone, ln this regard reference may be made to case of State Vs. Minhu alias Gul Hassan reported in (PLD 1964 S.C 813) and the case of Bahadur Khan Vs. The State reported in (PLD 1996 S.C 336). Ln this case, the retracted confessional statement of appellant/accused Sajjad Ali has been corroborated in material particulars. Thus, seen in the light of above facts and circumstances and the case-law, in our view, appellant Sajjad Ali was rightly convicted and awarded the sentence under the impugned judgment.
12. Coming to the case of rest of appellants namely Ali Khan, Liaquat and Ahmed Ali, it may be stated that Mr. Habibullah Shaikh, learned counsel appearing on their behalf, in his arguments, raised two grounds; firstly, that the confessional statements of afore-mentioned appellants were neither voluntary nor true hence inadmissible and the same cannot be made as sole basis for their conviction and; secondly that in absence of any other corroboratory ocular or circumstantial evidence, the confessional statement of appellant-accused Sajjad Ali implicating other appellants cannot alone be considered to base on it their conviction and sentence.
13. Ln order to consider the above grounds pressed into service by Mr. Shaikh, we have gone through the confessional statements of above-named appellant, lt is noted that appellant Ali Khan, in his confessional statement has stated that: "He is driver of co-accused Syed Dost Ali Shah and used to reside in his bungalow. About 1-1/2 month back Haji Kori alias Khamiso Bhayo (co-accused) came at the bungalow of Syed Dost Ali Shah, in Rohri and in his presence expressed that in case Dr. Amanullah Bhurgri is abducted a huge money can be procured and that for that purpose Klashnikov and a car would be needed. On this Syed Dost Ali Shah replied to him that weapons be taken from Liaquat Ali Mahar (co- appellant/accused) and his Toyota Corolla Car with number plate of Government which was parked in bungalow in T & T Colony, Airport Karachi be brought and then the job be done. As such he and co-accused Haji Korr alias Khamiso Bhayo took key of the car from Syed Dost Ali Shahzad decided to join in Sajjad Ali Ali Buriro in Bachai Shah Buriro (co- appellant/accused) for committing the offence. Then he and co-accused Haji Kori alias Khamiso Bhayo went to Karachi, met (co- appellant/accused) Sajjad Ali Buriro, who had already gone there and brought above-mentioned car in Sukur on 9.1.2001 in the evening time and went to the bungalow of co-accused Syed Dost Ali Shah leaving Sajjad Ali Buriro in Bachai Shah Mian. The next morning, he along with co- accused Haji Kori alias Khamiso Bhayo took Sajjad Ali Buriro from his house and met with co-appellant Liaquat Ali Mahar, co-accused Abdul Nabi and Allah Dino alias Sher Shambani and had had deliberations. On 18.1.2001 at afternoon time, according to programme, he and co-accused Hajji Kori alias Khamiso Bhayo boarded in the above-mentioned Toyota Corolla car at the bungalow of Syed Dost Ali Shah in Rohri and at about 6.30 p.m. Arrived in the otaq of Liaquat Ali Mahar where co-accused Abdul Nabi Noon, Allah Dino alias Sher Shambani, Anwar Shaikh. Sajjad Ali Buriro and Liaquat Ali Mahar were available. They all decided to kidnap Dr. Amanullah Bhurgri in the night.
Thereafter Liaquat Ali Mahar at the instance of co-accused Haji Kori alias khamiso Bhayo brought two Klashnikovs with one bag of bullets which were distributed between co-accused Abdul Nabi Noon and Allah Dino alias Sher Shambani, co-accused Sajjad Ali Buriro, co-accused Haji Kori alias Khamiso Bhayo and Anwar Ali Shaikh were armed with TT pistols who all boarded in the above car for kidnapping Dr. Amanullah Bhurigri while he Ali Khan stayed back, After between 1/2 to 3/4 hours co-accused Sikandar Ali Leghari and co- appellant/accused Ahmed Ali alias Ali Ahmed came at the otaq of co-accused Liaquat Ali Mahar where Ahmed Ali alias Ali Ahmed informed that co- accused Babul Khan Bhayo had given instructions to his tenants namely Jan Muhammad Bhatti and-Saleh Bhayo to keep Dr. Amanullah Bhugri in custody after kidnapping. Thereafter they came back to meet the above tenants who arranged their stay in a hut. At about 0100 hours during the night co-accused Haji Kori alias Khamiso Bhayo demanded from Dr. Amanullah Bhugri rupees one crore on his abduction by above-named 5 accused. They (processioner inclusive) kept Dr. Amanullah Bhugri in the hut of Saleh Bhayo for ten days and then shifted him to another place where co-accused Haji Kori alias Khamiso Bhayo and Abdul Nabi Noon demanded seven lacs from Dr. Amanullah Bhurgri as ransom. Then after six days, again abductee was shifted to another place in the meantime police was conducting raids in the surroundings and Dr. Amanullah Bhugri was also ill hence on 7.2.2001 about 8.00 hours of night they left him near road. The arrangements for meals were made by Saleh Bhayo and Jan Muhammad.
14. Lt may be stated co-appellant Ahmad Ali alias Ali Ahmed and Liaquat Ali Mahar have, in their respective confessional statements, stated the similar story in material particulars.
15. As stated above, we have examined above three confessional statements of co-appellants Ali Khan, Liaquat Ali, Ahmed Ali alias Ali Ahmed, however, before we consider the worth and value of these confessional statements vis-a-vis the grounds urged by Mr. Sheikh, as above, it will be appropriate to reproduce below Sections 164 and 364 Cr.P.C, which relate to the recording of confessional statements.
"SECTION 164
164. Power to record statement and confessions (1) Any Magistrate of the First Class and any Magistrate of the second Class specially empowered in this behalf by the Provincial Government may, if he is not police officer, record any statement of confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial.
(1 -A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross- examining the witness making the statement.
(2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion, best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried.
(3) A Magistrate shall, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, questioning the person making it, he has reason to believe that it was m^de voluntarily; and, when he records any confession, he shall made a memorandum at the foot of such record to the following effect: I have explained to (name) that he is not bound to make a confession and that, if he dobs so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made, lt was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct, and it contains a full and true account of the statement made by him.
(Signed) A.B Magistrate.
Explanation- lt is not necessary that the Magistrate receiving and recording a confession statement should be a Magistrate having jurisdiction in the case.
(Emphasis by us)
SECTION 364:
364. Examination of accused how recorded. (1) Whenever the accused is examined by any Magistrate, or by any Court other than a High Court the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language in which he is examined or, if that is not practicable, in the language of the Court or in English; and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands, and he shall be at liberty v to explain or add to his answers.
(2) When the whole is made conformable to what he declares is the truth the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge Shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused.
(3).........
(4) .....
16. Sub-section 2 of Section 164 reproduce above shows that the confession shall be recorded (by Magistrate) in such of the manner as prescribed for recording the evidence, as is, in his opinion, best fitted for the circumstances of case and that such confession shall be recorded and signed in the manner provided in Section 364; and then subsection (3) of Section 164 reads that the Magistrate shall, before recording any such confession explain to the person making it that he is not bound to make confession and that if he does so it may "be used as evidence against him and that no Magistrate-shall record any such confession unless, questioning the person making it, he has reason to believe that it was made voluntarily and when he records any confession he shall make a memorandum at the foot of such record to the effect as is' prescribed therein.
17. Subsection (1) of Section 364 reproduced above reflects that whenever the accused is examined by any Magistrate the whole of such examination, including every question put to him and every answer given by him shall be recorded in language in which he is examined or if such is not practicable in the language of the Court in English; and such record shall be shown or read to him or, if he does not understand the language in which it is written, shall be interpreted to him in the language which he understand and he shall be at liberty to explain or add to his answer, Sub- section (2) of Section 364 provides that when the whole is made conformable what he (accused) declares is the truth; record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and record contains full and true account of statement made by the accused. Above provisions are mandatory in nature and puts on the Magistrate a legal obligation to comply with the above provisions of law while recording confessional statement.
Violation of the said provisions shall lead to an illegality not curable under section 537 Cr.P.C.
18. Ln the instant case, however, learned Magistrate recording the above-mentioned confessional statements has neither made a requisite memorandum at the foot of these confessional statements nor he has mentioned/written anywhere therein that the confessional statements of above-named co-appellants contained full and true account of the statements made by them. He has simply mentioned at the foot of these statements that the same were recorded under his dictation and he believes that these were given voluntarily. Except statement of appellant Ali Khan, on two other statements of rest of appellants, he has even not mentioned that the same were read over to the accused and they admitted the contents thereof to be correct, lt shall be pertinent to note that the same Magistrate namely P.W Aijazul Hassan had recorded statement of appellant Sajjad Ali which was written in his own handwriting and the prescribed memorandum was also made at the foot of said confession which fact, though, he admitted in his deposition as Ex.33 is, also, vividly visible on the reading of said confessional statement; but it is quite un- understandable that what prevented him to record confessional statements of other appellants/accused and he got the same recorded at his dictation, lt is also noted that the answers of all preliminary questions in the aforementioned three confessional statements are written in English language while the main text of statements is written in Sindhi language, it may be stated that the question whether confession is true is also to be determined keeping in view the attending circumstances of each case, ln the instant case, it not only that the Magistrate recording the confession, for the reason best known to him, has not appended certificates that above three confessional statements contained full and true account but the eyewitnesses including abductee Dr. Amanullah did not identify the appellants when they were available at the time of recording their evidence, ln their evidence they stated that they do not know these appellants-accused,. Lt is well-settled that to base conviction solely on the basis of a confessional statement it need be voluntary and true. Heavy responsibility lies with the Court to determine that the confession is voluntary and true or is lacking within the scope of either terms "voluntary" and :true". Since the Magistrate recording the confessional statements of appellants Ali Khan, Ahmed Ali alias Ali Ahmed and Liaquat Ali has not certified by appending prescribed certificate that these statements are true and eye-witnesses including the abductee have not identified them in Court to be the accused persons, the conviction and sentence cannot be based on such confessional statements which, in the above circumstances cannot be said to be true.
19. Besides above, on examination of record it is noted that the above-named three appellants retracted their confessional statements, lt is well-settled that to base a conviction on a retracted confession as a matter of prudence alone it requires corroboration in material particulars, ln this view we are supported by the case of State Vs. Minhun alias Gul Hassan reported in (PLD 1964 S.C 813) in which was observed as follows: "lt is now well-settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted for not retracted, can in law validly from the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admissibility in law. As observed even by Munir, C.J in his Commentary on the law of Evidence at page 168 (Vol.1) it is a settled rule of evidence that unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on it strength alone, lt is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
20. Ln case of Bahadur Khan (supra) similar view as taken while observed as follows: "Admittedly appellant has retracted from his confession should be accepted only if it is corroborated by clear cogent and independent evidence. Although there is' no such provision to accept retracted confession on this basis, this is a rul6 of prudence in the administration of criminal justice which has been followed by all the jurists and authorities, (Emphasis is ours). The Court ought to examine whether a confession is made voluntarily free from coercion and torture and also examine the circumstances under which it was made and retracted. However, if the reason given for retracting is palpably false, absurd and incorrect the Court can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek some corroboration for retracted confession. The corroboration of such confession should be of material particulars, connecting the accused with the offence." (Emphasis is ours).
21. Having discussed the case of appellants Ali Khan, Liaquat Ali and Ahmed Ali alias Ali Ahmed vis- a-vis their confessional statements, it may be stated that co- appellant Sajjad Ali in his confessional statement involved the other appellants; as well, the acquitted accused namely Anwar Shaikh, Abdul Nabi, Haji Kori, Allah Dino, Muhammad Saleh, Dost Ali Shah, Wahid Bux Bhayo, Sikandar Ali and Babul Bhayo of whom accused Anwar Shaikh, Abdul Nabi, Haji Kori and Allah Dino were attributed active role and conscious-hand in commission of alleged offence of abduction of abductee P.W Dr. Amanullah. As far co-appellants are concerned appellant Sajjad Ali disclosed in his confessional statement that appellant Liaquat Ali provided two K.Ks and one bag used by co- accused Abdul Nabi and Allah Dino in the active commission of the offence. He also disclosed that all co-appellants had, too, conspired in committing the alleged offence, lt may be stated that against the co-appellants Ali Khan, Liaquat Ali and Ahmed alias Ali Ahmed; besides the above confessional statement of convict appellant Sajjad Ali prosecution has based the case of these three appellants on their own confessional statement, lt may be noted that as far their confessional statements are concerned, we have already observed that the same cannot be said to be true. Hence the same are ruled out of consideration. Thus having excluded circumstantial evidence so adduced in the shape of their confessional statements the question for determination for us will, now be whether on the basis of confessional statement of an accomplice/co-accused alone the appellants can be held guilty of the offence, ln this regard it may be stated it is well- settled that a solitary confessional statement of an accomplice cannot and should not form the basis of conviction of other accused unless corroborated by other ocular or circumstantial evidence, ln this view of the matter, we are forfeited by the case of State Vs. Minhun (supra) the relevant observation wherein has already been reproduced above. We are also supported by case of Arif Nawaz Khan (supra), it has been observed that: "ln Islamic Criminal Law, the confession of an accused against the co-accused is not acceptable and if there is no other proof against him, he will not be punished on the said confession, lt is based on the following hadith:- ((Urdu Text))
Translation: "lt has been related on the authority of Sa'd al-Sa'idi that a man came to the Prophet and confessed that he had committed adultery with a woman named by him. The Prophet (P.B.U.H.) sent for the woman and enquired from her about it. She denied the allegation. The Prophet (P.B.U.H.) punished the male but acquitted the female." (Ibn Qudamah: Al-Mughni, printed Riadh, Vol. V111 page 193 (This Hadith is stated in Al-Sunan, Abdu Da'ud). Another Hadith is of the Aseef (servant labourer), lt reads- ((Urdu Text))
Translation: "lt has been related on the authority of Abu Hurairah and Zaid Ibn-e-Khalid that while they were with the Holy Prophet P.B.U.H.), a man stood up and said (to. .The Prophet P.B.U.H.)). "I beseech you by Allah, that you should judge as according to Allah's laws. When the man's opponent who was wiser than him, got up saying, (to Allah's Apostle) judge us according to Allah's laws and kindly allow me (to speak). "The Prophet (P.B.U.H.) said, "Speak". He said, "This my son was a labourer working for this man and he committed an illegal sexual intercourse with his wife, and I gave one hundred sheep and a slave as a ransom for my son's sin. Then I asked a learned man about this case and he informed me that my son should receive one hundred lashes and exiled for one year, and the man's wife should be stoned to death." The Prophet (P.B.U.H.) said, "By Him in whose Hand my soul is, I will judge you according to the laws of Allah. Your one hundred sheep and the slave are to be returned to you, and your son has to receive one hundred lashes and be exiled for one year. O Unais' Go to the wife of this man, and if she confesses, then stone her to death."
Unais went to her and she confessed. He then stoned her to death, lt is important to note that the Prophet announced the sentence for the male culprit and ordered Unais to go to the woman and stone her to death if she confessed." ln the above narration, it appears the son had also accompanied his father to the Prophet as the words ( ) this my son indicates his presence as also commended by Ibn Hajr Asqalani in Fath al- Bari Volume XII, Beirut, pp 136-37. Obviously, the punishment to the woman was made dependent on her own confession as borne out of the last words of the Holy Prophet (((Urdu Text)))-lf she confesses, stone her to death.
Thus a confession only implicates the accused, but not the co-accused. This is also based on the concept of individual responsibility. However, if may be considered as Qarinah ( ), as circumstantial piece of evidence against the co-accused and can be a basis for Ta'zir to the co-accused, if it is corroborated by other independent evidence, (Bahanasi: Nazaritish al-lsbatfi'l Fiqah al Jinani al- Islarni)------- ---- --page 176)."
22. Again the case of Javed Masih (supra) strengthens the above proposition, ln the said case Moulana Muhammad Taqi Usmani writing the judgment observed that "it is true that solitary statement of an accomplice should not form the basis of conviction of other accused persons unless it is corroborated by some other circumstantial or ocular evidence." The above principle whether on the basis of confessional statement of an accomplice the other accused can be awarded conviction was discussed in views Ahadith of Holy Prophet (peace be upon him) in a case of Faqir Ullah (supra), lt was observed therein as follows:- "This principle is based on the well-known incident reported by almost all the compilers of the Ahadith in which the Holy Prophet (P.B.U.H.) punished a person with Hadd on the confession of the commission of Zina. But in spite of the fact that he had mentioned a particular woman by name with known he had admitted to have committed Zina, the Holy Prophet (P.B.U.H.) did not convict the woman the basis of his confession by the co-accused. He appointed a judicial officer to investigate and to independently find out whether the woman had committed Zina or not. The Holy Prophet (P.B.U.H.) directed the judicial officer to punish the woman only, on her own free and independent admission. On the basis of this Hadith and several other Ahadith. Muslim jurists have developed the principle that the implications of the confession of a person are confined to himself and cannot be extended to some body else, lt also means that the confession made by a person may be accepted to the extent to which it affects himself and may be rejected to the extent to which it implicate some body else"
23. Admitted fact is that no recovery of Klashnikov rifles, allegedly provided by co-appellant Liaquat Ali, has been made. There is no other evidence available to support the prosecution case that either co-appellant Liaquat Ali provided klashmkov rifles and bullets to other accused actively participating in the commission of offence. Complainant and other P.Ws including the abductee for whom it is alleged that after his abduction, he was handed over to appellant Ahmed Ali alias Ali Ahmed Bhayo and Ali Khan Umrani have failed to identify them in Court to be the accused persons.
They have stated in their evidence that these three appellants were not known to them. Besides after their arrest they were not put to any identification parade as was done in the case of appellant Sajjad Ali. There is also no other evidence that these three appellants conspired to abduct abductee P.W Doctor Amanullah or that after abduction they held him hostage for ransom.
Thus in our view there is neither ocular evidence nor other circumstantial evidence to corroborate the confessional statement of appellant Sajjad Ali. We are, therefore, clearly of the view that prosecution failed to bring guilt home against these three appellants namely Ali Khan Umrani, Liaquat Ali Mahar and Ahmed Ali alias Ali Ahmed. Consequently conviction and sentence awarded to them under the impugned judgment is set aside and they shall be released forthwith in case they are not required in any other case. The conviction and sentence awarded to the appellant Sajjad Ali is however, maintained. This appeal is accordingly allowed to the above extent.