' SALALHUDDIN PANHWAR, J.---By this common judgment, we intend to dispose of these two appeals, as the same have arisen out of one and same crime number, therefore, through these instant appeals, appellants have assailed the judgment dated 11th November, 2011 passed by Special Judge Anti-Terrorism Court Sukkur in Special Case No,137 of 2009 (Re-The State v.
Jamaluddin and others) whereby appellants were awarded sentences:---Imprisonment for life for offence under section 365-A, P.P.C. Read with section 34, P.P.C. And section 7(e) of Anti-Terrorism Act,1997 and for offence under section 302, P.P.C. Read with section 34, P.P.C. And 7(a) of Anti- Terrorism Act, 1997 with fine of Rs,100,000 (One lac), in case of default one year and two years further sentences were awarded. The appellants were also convicted under section 343, P.P.C. Read with section 34, P.P.C. To undergo-R.I. For one year.
2. Succinctly, the facts of the prosecution, as per F.I.R. Lodged by complainant Muhammad Hanif on 29-6-2010 are that Muhammad Farooq Memon aged about 48 years is younger brother of complainant as he was contractor. On 22-6-2010 complainant along with his brother Muhammad Farooq, nephew Abu Umar and Abu Bakar and other were present in the house, when at about 2000, hours there was a call on Mobile/sim No,0333-3662189, which was attended by his brother Muhammad Farooq, 'who, informed that some guests are coming and he left the house on motorcycle of Hero Company of Red colour, while saying that he will come back after meeting with them but he did not return till night. Thereafter complainant searched but could not find any clue. On 25-6-2010, complainant received a call from his brother Muhammad Farooq's mobile; one stranger disclosed that his brother has been kidnapped and will be released after ransom. The complainant conveyed this fact to his relatives and on 27-6-2010 at about 2012 hours, again he received call from same number; one unknown person disclosed that his brother Muhammad Farooq in serious condition available neat Arif Builders Colony. After receiving such information complainant along with his nephews Abu Umar and Abu Bakar and friends Aslam, Idress and other relatives reached at Arif Builders near Airport road Sukkur, where they saw that Muhammad Farooq lying at footpath and had sustained injuries on his body and was not alive.
Thereafter complainant party took Muhammad Farooq at Hira Medical Centre Sukkur, where doctor declared him as dead. After funeral ceremony, complainant lodged F.I.R. After usual investigation, case was sent up for trial, accused Latif and Yousif remained absconder, thus, declared absconder.
3. Charge was framed against the appellants/accused; they pleaded not guilty vide their pleas, recorded at Exhs.10/A and 10/D. The absconding accused Yousif and Latif were also indicted under section 19 of Anti-Terrorism Act, 1997 in absentia.
4. To substantiate the charge, prosecution examined P.W.1 A.S.-I. Muhammad Panjal at Exh.11, who produced F.I.R. At Exh.11/A. P.W.2 PC Shamshair Ali at Exh.12 who produced memo of arrest of accused. Mst.Tasleem at Exh.12/A. P.W.3 Abu Umar at Exh.13. P.W.4 Abu Bakar at Exh.14. P.W.5 PC Shahzado at Exh.15, who produced memo of arrest of accused Ghulam Shabbir at Exh.15/A. P.W.6 complainant Muhammad Hanif at Exh.16. P.W.7 Mr.Rajib Ali Shar lInd Civil Judge and Judicial Magistrate, Sukkur at Exh.17 who produced confessional statement of accused Mst.Tasleem at Exh.17/A. P.W.8 SIP/I.O. Ghulam Nabi Shaikh at Exh.18 who produced memo of place of wardat, memo of arrest of accused Abdullah Shah, memo of arrest of accused Jamaluddin, two copies of notices at Exhs.18/A to 18/E. Thereafter. Learned ADPP/SPP for State closed the side of prosecution vide his statement Exh.
19.
5. Statement of accused persons were recorded under section 342, Cr.P.C. Vide Exhs.20 to 23 respectively, wherein they denied the prosecution case and professed their innocence. Accused Mst.Tasleem further stated in her statement (Exh.20) that she has been maltreated and tortured by SIP Abdul Malik Kamanger, who had broken her little finger of left leg and forced her to make confession.
6. Learned counsel inter alia contended that this is a case of no evidence; except confessional statement, prosecution has not collected any evidence against the accused persons; confession of appellant Mst.Tasleem is not in fact confession as provided under section 364, Cr.P.C.; which statement reflects that in her statement she disclosed before Magistrate that she was severely maltreated by police officials, inspite of that her statement was recorded, such exercise undertaken by Magistrate is having no legal effect; deceased Muhammad Farooq was not examined by medical officer nor his postmortem was conducted as to determine the cause of death; according to prosecution deceased died due to heart attack. Therefore, instant case is false; impugned judgment is not tangible under the law and he has relied upon Muhammad Pervez and others v. The State and others (2007 SCMR 670).
7. Conversely learned A.P.-G. Did not controvert the plea of appellants' counsel that except confession of appellant Mst.Tasleem no any piece of evidence is available against the appellants; however, he maintained that impugned judgment is according to law, recorded properly, as confessional statement is sufficient to award the conviction to appellant Mst.Tasleem who recorded confession and on her statement conviction of co-accused is also legal. He has relied upon Majeed v. State (2010 SCMR 55).
8. Heard learned counsel for respective parties and perused the record.
9. After meticulous examination of available record and consideration of contentions raised by respective counsel we have examined the ocular account of prosecution case, which consists on statements of complainant Muhammad Haneef, who is brother of deceased, has stated in his chief that "I see my F.I.R. At Exh.11/A and say that it is same correct and bears my signature (F.I.R. Was against unknown accused persons). I cannot say whether present accused same or not; P.W. Abu Umar, son of the deceased Mohammad Farooque, stated in his examination-in-Chief that "My statement was not recorded by police. Accused present in the Court are not known to me" and P.W. Abu Bakar, who is also son of deceased Muhammad Farooq has stated in his statement that "My statement was not recorded by police. Accused present in the Court are not known to me".
Thus it is obvious, clear that prosecution brought no ocular evidence against the appellants accused and except so-called confessional statement of appellant Mst. Tasleem, there is no idta of evidence found available against the appellants.
10. Since this case is based on only confessional statement of Mst. Tasleem, therefore, it is important to examine minutely her statement. It is not a disputed fact that confessional statement is retracted by her in statement under section 342 Cr.P.C. We would endorse here that the confession should be volunteer one, else it cannot be termed to be a confession. This was the purpose and objective which necessitated prescribing the pro forma for recording the confessional statement wherein specific question (s) were inserted to know from mouth of the confessor whether he/she is going to confess the guilt, voluntarily or such words are result of coercion. Not only this but there is mandatory requirement that person, coming to confess, must be given relaxing/reflection time with warning that such confession would be used against the confessor.
Thus it makes clear that every precaution has to be taken by the Magistrate to satisfy himself that confession is voluntary one and only then to proceed further.
11. From the perusal of confessional statement, it is manifest that such statement is not on prescribed pro forma. It was recorded on 9th July. 2010 whereas appellant Mst. Tasleem was arrested on 5th July, 2010 hence the confessional statement was recorded after 6 days of her arrest. In reply of question No,4 it is evident that when she was asked that whether she was beaten, tortured or maltreated by police, she replied" yes "I am maltreated by S.H.O. Abdul Malik Kamagner" and in question No,4 she was asked that what are the circumstances which are inducing you to confess? She answered "my cousin compelled me to confess". It is surprising that despite answers to above these questions learned Magistrate not only proceeded further but also endorsed a note which shows "for the following reasons, I find that confession is voluntarily in nature" this shows that concerned Magistrate has completely negated the mandatory requirements of law, though she (appellant/accused) categorically stated in response to question No,4 that she was not only maltreated by S.H.O. But her cousin compelled her to confess. We are in agreement with learned counsel for the State that any lapse on the part of Magistrate in recording confession cannot always be treated as fatal to the evidentiary value of confession but it is to be evident that the said lapse has not in any way adversely affected the voluntariness or truthfulness of the confession.
Thus it is quite safe to say that emphasis is upon voluntariness and truthfulness of the confession which has to be gathered collected from the responses answers given by the confessor to mandatory questions. Once it is found that confessor was subjected to maltreatment before production for confession or where confessor states that he/she is making confession due to compulsion of some body else, the confession cannot be taken as voluntary or truthful. The word "Voluntary" has been defined in Black's Law Dictionary as:-- Voluntary, adj.
1. Done by design or intention (voluntary act).
2. Unconstrained by interference, not impelled by outside influence (voluntary statement).
' This plain reading of the voluntary statement makes it clear that it should be without any interference or influence from outside but in the instant case it was specifically pleaded by confessor that she was subjected to maltreatment and that confession was at instance of her cousin. In such circumstances we are unable to agree with findings of learned trial court that confessional statement was voluntary one. It is also worth to add here that the procedure provided under section 364, Cr.P.C. Was also not followed by Magistrate.
12. In view of above it is manifest on record that there is no direct evidence against the appellants which could be legally taken as sufficient to hold conviction. The confession has been found to be not qualifying the requirements of voluntariness of truthfulness hence this piece of evidence is also not sufficient to hold the conviction. Moreover, it is also requirement of law that though conviction could sustain even on a retracted confessional statement but same should be proved to be voluntary and truthful and should also be corroborated as a rule of procedure hence the court (s) are required to seek corroboration of the same on material particulars as has been held in the case of Majeed v. State reported in 2010 SCMR 55 but in the instant case the prosecution failed to bring any material on record which could be taken as corroborative to shoulder the above retracted confession.
13. Since the prosecution has failed to prove the case beyond the shadow of doubt against the appellants and impugned judgment is against the spirit of settled principles of Criminal Administration of Justice therefore, same is not sustainable under the law. Thus impugned judgment is hereby set aside. Consequently the appellants are acquitted from the charge of this case under section 423(b)(i), Cr.P.C.
14. Before parting, it is germane to examine the legality of conviction awarded to absconder accused Yousif and Latif, both were tried and convicted in absentia. It is pertinent to mention that under Articles 10 sub-clause (1) and 10 A of the Constitution of Pakistan 1973, no person arrested shall be denied the right to consult and defend by a legal practitioner of his choice and can be deprived from the right of fair trial, therefore it is quite clear that no accused can be denied the right to consult or to be defended by a legal practitioner of his own choice. The above mentioned convicts were absconding at the relevant point of time. Therefore, they undoubtedly were denied the right to defend themselves and deprived the right to consult or defend by a legal practitioner.
Thus, the trial in absentia is violative of the Articles of the Constitution. The convicts were not afforded an opportunity of being heard and thereby they were condemned unheard which is contrary to the principles of natural justice as well.
15. The above question is also resolved in various precedents in case reported as Zial Ullah Khan and others v. Government of Punjab and others (PLD 1989 Lahore 554) it is held that the trial of an accused person in absentia is violative of Article 10 of the Constitution of Islamic Republic of Pakistan. Said judgment was assailed by the Government of the Punjab in Civil Appeals Nos.680- 89, before honourable Supreme Court reported as Government of the Punjab through Secretary Home Department v. Zia Ullah Khan and 2 others (1992 SCMR 602) hon'ble Supreme Court dismissed the appeal and upheld the judgment. In another case reported as Qari Abdul Hayee and another v The State (2005 YLR 1865) while relying upon the aforesaid case of Zia Ullah Khan (ibid) it was observed that trials of accused in their absence are ultra vires and against Article 10 of the Constitution. The honourable Supreme Court in cases titled as Muhammad Arif v. The State (2008 SCMR 829), Mir Ikhlaque Ahmad and another v. The State (2008 SCMR 951) and in case titled as Arbab Khan v The State (2010 SCMR 735) had taken the same view and declared the trial in absentia as violative of Articles 9 and 10 of the Constitution and found the same contrary to the principles of natural justice.
16. As discussed above, it is manifest that the conviction of absconder accused Yousif and Latif who were tried and convicted in absentia, is violative of Articles 10(1) and 10 A of the Constitution of the Islamic Republic of Pakistan, 1973: hence not sustainable in the eyes of law. The convicts have not been afforded an opportunity of hearing and were condemned unheard which is also against the principle of natural justice. Therefore, when confronted, learned A.P.-G. Frankly conceded to this proposition. So, we are convinced that the conviction and sentence passed by the tiral Court in the absence of the convicts is not sustainable being violative of the Constitution and the principles of natural justice; therefore same is remanded back to the extent of accused Yousif and Latif for denovo trial.
17. Above are the reasons of our short order dated 7-3-2013, whereby instant appeals were allowed.