' ABDUL LATIF KHAN J.--Darwesh and Afzal Khan alias Bangash have filed instant criminal appeal against the judgment and order dated 23-11-2013 passed by learned Judge, Anti-Terrorism Court- III, Swat at Timergara, whereby they were convicted and sentenced under section 7(e) ATA, in case F.I.R. No, 159 dated 9-2-2010, registered at Police Station, Khaal, Dir Lower, to imprisonment for life along with forfeiture of their property, however, benefit of section 382, Cr.P.C. Was extended to them.
2. According to prosecution story, on 9-2-2010 Yousaf Zada, complainant, lodged a report to police that his nephew, namely, Darwesh was residing with him in his house as his relations were strained with his father and on 5-2-2010 his son, namely, Hasnain, disappeared from house, so, he started search of him and made announcement regarding his missing from house in the vicinity but in vain. On the following day, he received a call through his mobile cell No, 0342-9736328 in which demanded Rs,30,00,000 for the release of his son, so, he visited Dargai along with elders and contacted the culprits on said number but he was informed that the matter would be settled on next day. On 7-2-2010 he cattle to know that his son had been abducted for ransom by his nephew, namely, Darwesh, who further handed over the abductee to Yousaf, Bangash and Noor Rehman and, finally, on 8-2-2010 his son was recovered through the efforts of the elders, as such, on the report of complainant, the above referred F.I.R. Was registered.
3. After completion of investigation, complete challan in the case was submitted. Accused Darwesh, Afzal and Noor Rehman attended the Court, while accused Yousaf. Was avoiding his lawful arrest; therefore, proceedings under section 512, Cr.P.C. Were initiated against him. Learned trial Court, after observing legal formalities as required under section 265-C, Cr.P.C., formally charge sheeted the accused, who did not plead guilty and opted to face the trial. Prosecution in order to prove its case produced thirteen witnesses. After closure of prosecution evidence, accused were examined under section 342, Cr.P.C. In which they retracted the confessions, claimed innocence and false implication, however, they were neither ready to be examined on oath under section 340(2), Cr.P.C. Nor wished to produce defence. Learned trial Court after hearing the parties, convicted and sentenced the convict-appellants Darwesh and Afzal as stated above, while accused Noor Rehman was acquitted of the charges, vide the impugned judgment. Feeling aggrieved from the judgment of conviction, the appellants filed the instant appeal.
4. Learned counsel for the appellant contended that report has been lodged with unexplained delay after consultation and deliberation. He added that there are material contradictions in the statements of P.Ws. It was argued that the alleged abductee has not been recovered either from their possession or at their pointation and even complainant and the alleged abductee have not been produced before the trial Court for recording their statements. He added that the confessions have been obtained through third degree method, which are neither voluntary nor true and the same have been retracted. He added that there is no evidence regarding payment of ransom amount by the appellants. He contended that the court below has not appreciated the evidence on record on its true perspective and its findings are based on conjecture and surmises. He submitted that there are sufficient material on the record which create doubts in the prudent mind regarding the guilt of the convict-appellants, therefore, the convict-appellants are entitled to be extended benefit of doubts and deserve acquittal.
5. Complainant is reported to be abroad, however, on 27-2-2014, his father appeared before Additional Registrar of this Court and submitted an application alleged therein that he does not want to contest the instant appeal, however, learned D.A.-G. Present and contended that, though, there is delay but the same has been explained by the complainant. He added that prosecution produced independent witnesses and, there are no material contradictions in their statements which is further supported by the confessional statements of the appellants coupled with site plan, Exh.PB, memos, prepared at the pointation of appellants. He contended that, though, there are minor discrepancies which are not fatal to the prosecution case and supported the impugned judgment of trial Court.
6. We have heard the learned counsel for the parties and perused the record with their able assistance.
7. The record reveals that minor son of complainant, namely, Hasnain, was allegedly missing from house on 5-2-2010 and on following day, i.e,, 6-2-2010 complainant received a call from unknown culprit, demanding Rs, 30, 00,000 for the release of his son, therefore, he alongwith elders went to Dargai, where he contacted the referred number and with the efforts of local elders, the abductee was recovered on 8-2-2010. On the following day, i.e,, on 9-2-2010 he lodged report against four accused for kidnapping of his son for ransom. P.W.4 Bahramand Said deposed in his examination- in-chief that on the pointation of accused Darwaish in Batkhela, the elders made mediation with the other accused, namely, Yousaf and Bangash and after the efforts of the elders, child Hasnain, abductee, was handed over to them in the hujra of Noor Rehman on 8-2-2010. In his cross- examination he stated that in his presence no one had paid any amount to the accused. He further deposed that he does not know as to from whom the child was recovered. P.W.9 Akhund Zada Sikandar Hazrat, elder, stated in cross-examination that he had not met with the accused nor seen them. Abdullah, P.W.2, marginal witness to the recovery memo, Exh. P.W.2/1, deposed in his cross- examination that his signature was obtained in their hujra by the police on a blank paper. Umar Zada, P.W.3, in his presence, pointation memo was allegedly prepared, stated in his cross- examination that he did not remember the exact time. He further deposed that he and Hayatullah signed blank papers at the instance of police. The making of report and the arrest of accused Darwaish would lead one to the conclusion that the F.I.R. Has been lodged after considerable consultation and deliberation and after conducting preliminary investigation in the case.
8. Admittedly, neither the alleged abductee has been recovered from the custody of the appellants nor there is evidence regarding payment of the ransom amount by the complainant or any other person to the appellants. The prosecution has also not produced the complainant nor the alleged abductee before the trial Court for recording of their statements. Complainant has been abandoned by the prosecution being abroad. P.W.6 Muhammad Biland stated in his cross examination that the child was brought by one Mian Thekadar from the accused to the hujra of Noor Rehman Thekadar but the said Mian has not been produced, as such, the prosecution withheld its best evidence. Non-production of complainant, abductee and Mian Tekhadar further makes the story of prosecution dubious. It is well-settled principle of law that if a best piece of evidence is available with a party and the same is withheld by him, then it is presumed that the party has some evil motive behind it in not producing the said evidence. Even otherwise, a presumption under illustration (g) to Article 129 of Qanun-e-Shahadat Order can fairly be drawn in the matter.
9. The only incriminating evidence against the appellants is the retracted judicial confessions.
Although, a judicial confession can be made basis, for conviction if it is actually made before a competent forum and made voluntary and true even if it is retracted at a later stage, provided that the other attending circumstances brought on file corroborate the same on material particulars. In the case in hand, though, the confessional statements were recorded by the Magistrate but the record reveals that both the appellants remained in police custody for about eight days before recording their confessional statements and there is no explanation of such delay. The card of arrest of accused Darwesh reveals that he was arrested on 9-2-2010 and was produced before the Magistrate on 10-2-2010, who granted one day police custody in his favour. On the expiry of remand period, he was produced before Magistrate on 11-2-2010 but he has not confessed his guilt, however, the concerned Magistrate extended the police custody in his favour for five days and he was again produced before Magistrate on the expiry of period of remand on 16-2-2010 but his statement was not recorded and on 17-2-2010, his confessional statement was recorded. Similarly, appellant Afzal was arrested on 8-4-2010 and one day police custody was granted in his favour till 9-4-2010 and on that he was produced before the Magistrate, where five days more physical custody was granted in his favour and his statement was recorded on 16-4-2010. P.W.8, the Investigating Officer, deposed in his cross-examination that accused Afzal Khan remained for eight days in police custody and on the last day of his custody the accused confessed his guilt before the Court. The questionnaire reveals that no question was put to the appellants by the concerned Magistrates regarding physical torture, if any, at the hands of police before recording their confessional statements. P.W.11, I ul Din Khan, Civil Judge, deposed in his cross-examination that he had not examined the body of the accused to ascertain whether he was subjected to torture or not.
The Court has to examine as to whether confessional statement is made voluntary, free from coercion and torture and also examine the circumstances under which it is made and retracted. In the present case, the appellants remained in police custody for eight days and there is every possibility of having been persuaded by police by coercion, inducement or torture to give the confessional statement, therefore, the same cannot be made basis for conviction. No doubt, the conviction can be based on the retracted confession alone but if it is found voluntary, true and confidence inspiring. In Aala Muhammad and another's case reported in 2008 SCM R 649 it has been held that:-- "Retracted judicial confession should not be acted upon, unless corroborated by some other reliable evidence."
' Wisdom is also derived from the case Arabistan and others v. The State (1992 SCM R 754). In the instant case, the very voluntary nature and truthfulness of the retracted confessions are under cloud and the same are also not supported by other evidence, so, no reliance can be placed on the same.
10. Quite apart from this, complainant did not appear before the trial Court for recording his statement and depose against the appellants. He was summoned by this court but his father appeared before the Additional Registrar of this Court with application stated therein that he is not interested to persue the appeal.
11. It has been now settled that conviction must be based on unimpeachable evidence and certainty of guilt and any doubt arising in the prosecution case must be resolved in favour of the accused. The evidence available on record are not of such a character which could be relied upon to convict a person as the testimony of elders are having material contradictions and doubts and benefit of such contradictions and doubts would go to the accused persons. It has now been settled that for giving benefit of doubt to an accused, there need not be a number of circumstances to prove the innocence of accused; even single circumstance creating reasonable doubt is sufficient for the acquittal of an accused. As the prosecution has failed to prove the guilt against the appellants beyond any shadow of doubt, therefore, their conviction cannot be maintained. For the aforesaid reasons, while extending the benefit of doubt, we accept the appeal filed by the appellant-convicts by setting aside their conviction and sentence and acquit them of the charges levelled against them.
' These are the reasons of our short order recorded on 18-4-2014.