' YAHYA AFRIDI, J.---This Criminal Appeal is directed against the judgment and order dated 8-10- 2012, passed by learned Judge, Anti-Terrorism Court-I, Peshawar, whereby Fazle Haq, the present appellant, has been convicted and sentenced under section 365-A of Pakistan Penal Code, 1860 ("P.P.C.") and section 7 of Anti-Terrorism Act, 1997 ("ATA"), to rigorous imprisonment for life, in case F.I.R. No.706 dated 8-10-2011, registered at Police Station, Abdul Hameed Shaheed, Shabqadar, District Charsadda ("F.I.R."), Benefit of Section 382-B of Criminal Procedure Code, 1898 ("Cr.P.C.") has been extended to the convict-appellant.
2. Brief and essential facts of the case, according to the F.I.R. Are that on 8-10-2011 at 1830 hours, within the criminal jurisdiction of Police Station, Abdul Hameed Shaheed, Shabqadar, District Charsadda, in connivance and collaboration with the absconding co-accused, namely, Hamza, Laiq Shah and Yaseen ("absconding co-accused"), while driving Motorcar bearing Registration No.B-3327 Peshawar Model 1986, ("Vehicle"), forcibly stopped another Car Bearing Registration No .
BB-1798 Peshawar, near Shanam Filling Station and the three absconding co-accused, forcibly took Salman to the Vehicle, for the purpose of ransom and made good their escape in the Vehicle from the place of occurrence; that the convict-appellant was shortly thereafter arrested from the Vehicle, while the other absconding co-accused fled away; that the absconding co-accused were subsequently proceeded against under section 512 of Cr.P.C.
3. During the investigation of the case, the present appellant recorded his statement, which was recorded under section 164 of Cr.P.C. And for reference, the english translation of the same is as follows:-- "I was asked as to where I was, I replied that I am at Shabqadar. Then I was told that we are coming, you may not go anywhere, because I am driver of taxi of Hamza, therefore, I was waiting for them. About after 20 minutes Hamza, Laiq Shah and Yaseen came and I accompanied them towards Peshawar. I stopped the vehicle near WAPDA Office. After some time, they told me to go, so I drove the vehicle. Near Major Qilla, Hamza etc. They said that I should stop the Suzuki going ahead of us, so I did so. No sooner the vehicle stopped, Hamza etc. Deboarded Salman from the said vehicle on pistol point and made to sit in our vehicle. After covering some distance, Salman was deboarded from the vehicle and I went towards Mardan. I don't know anymore."
4. On close of investigation, the prosecution submitted the challan and on refusing to accept the charge framed by the trial Court, the appellant demanded a trial, which ensued thereafter.
5. To prove its case, the prosecution produced as many as nine witnesses; Zabit Khan (P.W.1), Faiz Muhammad, (P.W.2), Salman, (P.W.3), Javed Constable No.495 (P.W.4), Jan Zada Khan S.H.O.
(P.W.5), Kifayatullah, Madad Moharrir No.949 (P.W.6), Shafiullah Khan CIO (P.W.7), Adam Khan, Judicial Magistrate Ist Class (P.W.8), and Suj at Ali Inspector (Investigation) (P.W.9).
6. The prosecution produced during the trial, 'Murasila' as Exh.PA, F.I.R. As Exh.PA/1, Card of arrest of the convict-appellant, as Exh.P.W.9/1, Site plan, as Exh.PB and Exh.PB/1, Applications for police custody as Exh.P.W.7/1 and Exh. P. W .7/2 pointation memo Exh. PD, Confessional statement Exh.P.W.8/1, Exh.P.W./8/2 and Exh.P.W.8/3, and Application for obtaining warrant of arrest, as Exh.P.W.7/4.
7. After the close of prosecution evidence, the appellant denied the prosecution case including that his confessional statement was made after torture and hence denied the same. However, he declined to produce any witness or evidence or record his own statement on oath.
8. Learned counsel for the appellant contended that the impugned judgment dated 8-10-2012 is against the law and facts of the case, therefore, liable to set aside; that the impugned judgment is based on misreading and non-reading of evidence; that the places and time of arrest of the accused-appellant are altogether different according to the site plan; that the mitigating circumstances relied upon by the learned trial Judge are actually the grounds for acquittal; that the accused-appellant was arrested on the day of occurrence and no recovery, payment of money or demand of ransom is in evidence on record, the application of section 365-A of P.P.C. Is not attracted, thus the conviction and sentence of the appellant is void, unsustainable; that the confessional statement of the appellant is doubtful because it clearly contradicts the time of recording of his statement by the Judicial Magistrate (P.W.8) and by the Chief Investigation (P.W.7); that the sole evidence available with the prosecution is hearsay evidence of the last seen of the appellant with abductee.
9. The learned Additional Advocate General ably assisted by the learned counsel for the complainant, controverted the submissions of learned counsel for the appellant and they asserted vehemently that the trial Court with dynamic approach appreciated the entire evidence produced by the prosecution and has rightly convicted the appellant; that the trial Court has correctly relied upon the testimony of the prosecution; that soon after the occurrence, the appellant was arrested in the present case; that no defence evidence is available on the record to believe that the appellant is innocent and is not involved in the present case.
10. Valuable arguments of the learned counsel for the parties have been heard and noted, while the record of the case thoroughly perused.
11. The anchor sheet of the prosecution's case is the confessional statement of the present appellant recorded under section 164 of Cr.P.C. Even if the said statement is accepted as voluntary and true, it would not be correct to term the same as a confession of guilt by the present appellant for the commission of the offence of 'abduction for ransom', as provided under section 365-A of P.P.C., for which he has been charged and convicted. The bare reading of the said statement would reveal the following peculiar features:-
12. There is no admission of guilt of conspiring to abduct Salman or any person for ransom.
(i) There is no admission of any intention to abduct Salman or any person for ransom.
(ii) There is no demand made or receipt of ransom by the appellant or on his behalf.
(iii) There is, however,.,. Admission of witnessing an abduction to have taken place before him and in the same transaction carrying the abductee in the vehicle that he was driving.
12. When the learned counsel for the appellant was confronted with the aforementioned peculiar features of the confessional statement of the present appellant, he firstly contended that the said statement was admission of facts and secondly, that the same did not constitute a confession for any offence, muchless for which the appellant was charged and convicted.
13. As far as, the latter part of the submissions of the learned for the appellant is concerned, this Court is in consonance with the said submission. The striking features clearly stated above, absolve the present appellant from the charge of the offence of 'abduction for ransom' provided under section 365-A of P.P.C. However, this Court is not inclined to accept the former submission of the learned counsel for the appellant regarding the statement of the appellant under section 164 of Cr.P.C. Being only an 'admission of facts' and not a `confession'.
' True, the term 'admission' has been defined in Article 30 of the Order, which reads as:-- "Admission defined. An admission is a statement, oral or documentary, which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons, and under the circumstances, hereinafter mentioned."
' The bare reading of the aforementioned definition has reference to the same being made by a particular person and that too in circumstances, which have been provided in the subsequent provisions of the Order. The term 'confession' on the other hand, has not been defined in the Order.
However, the said term is simply an admission of guilt of a person for an offence committed. The Black's Law Dictionary (8 Edition) has defined the term 'confession' as; `a criminal suspects oral written acknowledgment of guilt, often including details about the crime'.
' In this regard, Mr. Justice M. Munir, in his treatise of Principles and Digest of the Law of Evidence, has explained the difference between the two terms in a very comprehensive manner in terms that:- "The real point to remember, when distinguishing an admission from a confession, that the statement alone, and dissociated from the other evidence in the case, has to be looked at to determine whether it amounts to an admission of guilt or of substantially all the facts which constitute the offence. If it does, it is a confession; if it does not, it is not a confession. If the statement contains an admission of a fact in issue or relevant fact, but by itself it neither amounts to an acknowledgment of guilt nor an admission of substantially all the facts which constitute the offence, the statement is merely an admission and not a confession."
' The legal discourse, discussed hereinabove, when applied to the facts of the present case, clearly leads us to conclude that the statement rendered by the appellant under section 164 of Cr.P.C.
Was, in fact, an admission of the fact; that the appellant had witnessed an abduction of Salman and in the same transaction allowed the abductee Salman to be seated in the Vehicle, which he drove, though for a short distance, without any objection or protest to the other inmates of the Vehicle. Thus, these admission of facts by the appellant are relevant facts, which constitute the offence of abduction, chargeable under section 365 of P.P.C.
14. This Court is alive to the fact that the statement of the appellant recorded under section 164 of Cr.P.C. Was retracted by him. For safe dispensation of criminal justice, a retracted confession, has to cross the legal threshold on the touchstone of being 'voluntary', 'inculpatory' and 'truthful'.
' As far as, the first two condition precedents are concerned, it is noted that the defence was unable, to point out any striking, evidence to damage or diminish its effect to the extent of its voluntariness and for it being inculpatory.
' However, as far as the final condition of truthfulness of the said statement of the appellant is concerned, it is noted that the contents therein are to be corroborated by other direct or circumstantial evidence on material particulars, and thus, could be relied upon and proved against the 'maker' thereof in view of Articles 39 and 40 of Qanun-e-Shahadat Order, 1984 ("Order").
15. This matter has been eloquently described by the apex Court in Bahadur Khan's case (PLD 1995 SC 336), wherein it was observed that:- "Although there is no such provision to accept retracted confession on this basis, this is a rule of prudence in the administration of criminal justice which has been followed by all the jurists and authorities. 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. In Naqibullah and another v. The State (PLD 1978 Supreme Court 21) referred by the learned counsel for the appellant, the law relating to confession has been elucidated in an authentic and authoritative manner, with reference to several judgments of this Court and foreign Court. While referring to State v. Minhun alias Gul Hassan (PLD 1964 SC 813), it was observed:- "They both retracted from their confessions at the earliest opportunity, in their respective statements recorded by the Committing Magistrate as well as in the Sessions Court. In State v. Minhun alias Gul Hassan, this Court observed that it is now well settled that as against the maker himself his confession, judicial or extra-judicial, whether retracted or not retracted can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it is true and voluntary' and was not obtained by torture or coercion or inducement. In the opinion of the Court the question, however, as to whether in the facts and circumstances of a given case the Court should not act upon such a confession alone is an entirely a different question which related to the weight evidentiary value of the confession and not to its admissibility in law. In that connection this Court further remarked that:-- "As observed even by Munir, C.J. In his commentary on the Law of Evidence at page 168 (Volume 1) it is 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 its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points & surrounding circumstance & satisfy itself fully that the confession cannot but be true." (Emphasis provided).
16. When this Court considers the evidence of the present case, which has been produced by the prosecution in juxtaposition with the retracted confession of the present appellant, it is noted that there are clear and reliable corroboration on material particulars rendered by the direct oral testimony of Zaibat Khan (P.W.1) and Salman (P.W.3); the eyewitness and victim of the crime, respectively. Moreover, the time and place of arrest of the present appellant along with the Vehicle, which was duly identified by the eye-witnesses of the crime and recorded in the `Murasila' surely leads to a clear `adverse presumption' against the appellant, as envisaged under Article 129 (a) of the Order, especially, when he was unable to reasonably explain his presence in the Vehicle at the time of his arrest.
17. Another striking weakness in the prosecution's case is that it has failed to produce any evidence, muchless reliable evidence, to prove that any 'ransom' was demanded by the accused party and was accordingly paid to them for the release of Salman. In this regard, the complainant Zaibat Khan (P.W.1), is silent regarding the amount of 'ransom' demanded or paid by him. In fact, it is Salman (P.W.3), who is the only prosecution witness, who states that rupees two millions were demanded and paid as 'ransom' by his brother Zaibat Khan (P.W.1) for his release from the accused party. Thus, there is only an assertion, without any supporting proof, regarding the demand and payment of ransom for the release of Salman for the offence to come within the mischief of section 365-A of P.P.C. Carrying capital punishment. Moreover, it is not the case of the prosecution, that there was any conspiracy of which the present appellant was a party to abduct Salman for ransom. Hence, from the evidence produced, it is clear that prosecution has been unable to prove a case against the appellant committing the offence carrying capital punishment under section 365-A of P.P.C.
18. The prosecution's evidence is, however, clear in regard to the factum of abduction of Salman by the accused party, the testimony of Salman (P.W.3) to that extent coupled with that of Zaibat Khan (P.W.1) and the corroboration thereto by the statement of the present appellant under section 164 of Cr.P.C. And his arrest driving the Vehicle, soon after commission of the offence, not far from the place of occurrence, establishes without any doubt that the offence of kidnapping has been committed by the present appellant, as provided under section 365 of P.P.C.
19. The punishment for kidnapping, as provided under section 365 of P.P.C. Is imprisonment, which may be extended to seven years with fine. Keeping in view the role attributed to the present appellant in' the commission of the offence, it would be rather harsh and disproportionate to sentence him for the maximum period of seven years. As the appellant was arrested on the day of occurrence i.e. On 8-10-2011 and he has been behind the bars for the last more than two years, this Court finds the said period to be proportionate to the criminal culpability of the appellant.
20. Accordingly, for the reasons stated hereinabove, this Court alters the charge upon the appellant for the commission of offence under section 365-A of P.P.C. To that of section 365 of P.P.C. And while maintaining the conviction of the appellant, partially accepts the present appeal, reduce the sentence awarded to the appellant from life imprisonment (R.I.) under section 365-A of P.P.C. To that already undergone and also burdened with a fine of Rs.5000 (five thousand) and in case of failure to pay the same, to undergo six months' R.I., under section 365 of P.P.C.