Bilal, Ibrahim, Yasin, Mukhtar and Muhammad Azam Khan were tried in a private complaint by a learned Addl. Sessions Judge at Rajanpur on the charge of committing Qatl-e-Amd of Ghulam Akbar deceased on 19-8-2002 at about 9:30 p.m. within the area of Mouza Bursabad. The deceased died as a result of four injuries comprising of two incised wounds accompanying a contusion and abrasion. The case was initially set up through a complaint lodged on 19-8-2002 by Mukhtar Ahmad wherein none was nominated as accused and occurrence was described as an un- witnessed affair. It was through a private complaint filed much late in the day i.e. 17-10-2002 wherein accused were nominated for the first time with specific attributions.
2. After issuance of process, Bilal accused was burdened with a judicial confession wherein he inculpated himself to the exclusion of others and these two diametrical different positions were simultaneously pursued by the complainant, however, resulting into acquittal of all the accused which was challenged before this Court initially against all of them but was finally focused on the present respondent.
3. Learned counsel for the appellant contends that there was no occasion for the learned trial Judge to acquit Bilal Ahmad, respondent after his having made a detailed judicial confession which according to the learned counsel was a truthful account of events leading to the homicidal death of Ghulam Akbar, deceased. The learned counsel has laid emphasis on the point that Muhammad Ashiq Chughtai, PW who recorded judicial confession was not even cross-examined which omission operate as a conclusive proof of guilt against the respondent.
4. Contrarily, the impugned acquittal is defended by the learned counsel for Bilal, respondent on the ground that a retracted confession without corroboration cannot furnish basis to sustain capital charge, in view whereof, the learned trial Judge rightly acquitted the respondent.
5. We have heard the learned counsel and perused the record.
6. Once acquittal is granted by a tribunal of competent jurisdiction, exceptionally strong grounds are required to re-call the freedom and unless it is demonstrated that the impugned view whereby acquittal is recorded is perverse, arbitrary and capricious, resulting into miscarriage of justice, no interference with the same is called for. Possibility of taking of a different view by itself would not make out a case to reverse acquittal into conviction; retraction of judicial confession opens a window of possibility that respondent never made his breast clean otherwise he could have repeated his admission before the trial Court instead of contesting the same at the first available opportunity. Judicial confession is not a sacrosanct piece of evidence which must essentially be accepted under all circumstances and in each case; it must qualify the test of probability and truthfulness before its acceptance as is applicable to other pieces of evidence. Judicial confession in this case does not qualify these tests, firstly for the reason that retracted confession of Bilal, respondent is not in conformity with the case set up by the complainant both in his first information report as well as subsequently instituted private complaint; prosecution cannot blow hot and cold in the same breath; we cannot accept the case set up in the private complaint without first excluding the alleged judicial confession by Bilal, respondent and vice versa. There cannot be a better reason to exclude this confessional statement from consideration on this ground alone, nonetheless, there are other reasons as well. The Magistrate who recorded confessional statement did not inform Bilal respondent that he would not be handed over to the police after his confessional statement nor he pointed out to him in clear words that he was under no obligation to make any confessional statement; these are very important safeguards which cannot be denied to an accused facing the gallows. There is yet another intriguing aspect of the confessional statement and that is detailed contents thereof encapsulating even minute details of the prosecution case; a person relieving the burden of making his breast clean is not supposed to attend to peripheral details of the incident. Mere omission to contest a statement through cross- examination, otherwise inherently flawed, cannot be pressed into service to prove a charge in safe dispensation of criminal justice.
For the above reasons, we hold that the case of the prosecution was rightly disbelieved by the learned trial Judge, therefore, present appeal is dismissed.