ZAHOOR AHMED SHAHWANI, J.---The appellant Din Muhammad son of Palay, through this criminal appeal, has assailed the judgment dated 31.03.2014 passed by the learned Additional Sessions Judge, Killa Saifullah in case FIR No,06/2013 dated 10.03.2013 registered under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 at levies station, Saddar Muslim Bagh, whereby the accused/appellant was convicted under section 392, P.P.C. and sentenced to suffer four years rigorous imprisonment with fine of Rs,10,000/- or in default of payment of fine to further suffer six months' simple imprisonment. Benefit of section 382-B, Cr.P.C, was extended to the accused/appellant.
2. Brief facts of the prosecution case are that on 10.03.2013 at 08:30 a.m. complainant Abdullah Khan son of Haji Abdullah was coming on his Mazda bearing registration No,TKN-848 Quetta, towards the Chromites Mines of Haji Bakhtullah situated at Murgha Marghzan Muslim Bagh for loading Chromites, when he reached near Mine No,208, at a water channel, 04/05 un-known persons armed with weapons came out of a 2-OD car tied his hand and feet and put him in the rear seat of their 2-OD car and kept on roaming for about 2/3 hours in their 2-OD car and then snatched his Mazda. Later on they threw complainant in the area of Khatoka road. They also snatched mobile phone, two sims bearing Nos, 0313-8488185/0332-0483606, cash amount and Refugee Identity Card. On such complaint/Fard-e-Bayan FIR No, 06/2013 dated 10.03.2013 was registered at P.S. Levies Station Saddar Muslim Bagh against the un-known persons under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979.
3. Investigation of the case was accordingly conducted and challan was submitted before the learned trial court.
4. The appellant was arrested on. 12.03.2013. After investigation appellant was sent to face trial; the learned trial Court framed charge against the accused on 18.06.2013 under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The accused did not plead guilty and claimed trial.
5. At the trial, prosecution produced five (05) witnesses P.W-1 Abdullah Khan, complainant reiterated the same facts as narrated in his Fard-e-Bayan Ex.P/1-A; P.W-2 Hafeezullah is witness of recovery memo, who produced truck No,848 as Art-P/1; P.W-3 Mujeedullah, Levies sipoyee is marginal witness of recovery to which he produced 20D car as Ex.PW-3/A, he also identified accused Din Muhammad; P.W-4 Muhammad Imran Siddique , Judicial Magistrate, who recorded statement of accused under section 164 Cr.P.C. as (Ex.PW-4-A) and (Ex.PW-4/B).; and P.W-5 Abdul Majeed, Tehsildar, is the Investigating Officer, he prepared Fard-e-Maqbozgi of Mazda, recorded statement of witnesses, arrested the accused on 12.03.2013, conducted identification parade. He also produced FIR as (Ex.PW-5/A), Challan as Ex.P.W-5/B and Ex.PW-5/C and site sketch as Ex.PW- 5/D.
6. On close of prosecution evidence the statement of accused/appellant was recorded under section 342, Cr.P.C. wherein he denied the allegations leveled against him by prosecution. The appellant neither got recorded his statement on oath as envisaged under Section 340(2) Cr.P.C, nor produced any defence witness in his defence.
7. At the close of trial, learned trial Court vide impugned judgment convicted and sentenced the appellant in the manner as mentioned above.
8. Being aggrieved and dissatisfied from the impugned judgment dated 31.03.2014 passed by learned trial Court, the appellant has preferred the instant appeal.
9. Learned Counsel for the appellant argued that appellant is neither nominated in the FIR, nor any recovery has been effected from his possession; FIR has been registered with delay of five hours but no explanation was put forth in this regard and Assistant Commissioner who's presence identification parade of appellant was held not examined by the prosecution. Learned counsel for appellant further argued that confessional statement is not admissible as same was recorded with delay of about ten days after arrest of accused, but no explanation with regard to delay was put forth; and prosecution has been unable to establish its case against the appellant.
10. On the other hand, learned DPG representing the State supported the impugned judgment passed by learned trial Court.
11. I have heard the arguments put forth by learned counsel for appellant, learned DPG and have gone through the record.
12. It is evident from the record that appellant is not nominated in the FIR and case was registered on report of Complainant (PW-1) against unknown accused persons. On the day of alleged incident concerned levies of levies station Saddar Muslim Bagh recovered the alleged robbed Mazda Truck Registration No,848-Quetta from a ravine parked abandoned. According to prosecution story then appellant was arrested who made disclosure and also got recorded his confessional statement before concerned pointation of Judicial Magistrate. But the record of the case is silent as to how and by whom appellant was implicated and arrested in the case in hand.
According to prosecution that complainant during identification parade had identified the accused thrice in presence of Assistant Commissioner but the concerned Assistant Commissioner was not produced in the court by prosecution in support of its case. The identification parade further becomes doubtful as complainant in cross-examination replied that from 10-03-2013 to 19- 03-2013, he used to visit levies station daily. The possibility cannot be ruled out that complainant might have seen the appellant in the levies station prior to identification parade as complainant had visited the levies station nine days regularly.
13. According to prosecution evidence that on 21-03-2013, appellant got recorded his confessional statement before concerned Judicial Magistrate (PW-4) wherein he confessed his guilt. The prosecution through PW-4 (Judicial Magistrate) got exhibited the confessional statement and certificate vide Exb-P/4-A to P14-C. According to Judicial Magistrate (PW-d4) that confessional statement was voluntarily one. But the perusal of the record reveals that appellant was arrested on 12-03-2013, but the confessional statement was recorded on 21-03-2013, with delay of ten days after arrest of appellant. The delay of ten days in recording the confessional statement as remained un-explained, which creates doubts about the voluntariness of the same and render it inadmissible. Moreover, the appellant in his statements recorded under sections 342-Cr.P.C. and 340(2) Cr.P.C. retracted from his confessional statement by stating that he has not given any confessional statement before Judicial Magistrate. (Reliance is placed on authorities reported as "Muhammad Nadeem (Alias Deeni) and another v. The State (Federal Shariat Court 2007 PCr.LJ 1211)" and State v. Muhammad Naseer 1993 SCM R 1822" wherein it was held.
"The respondent, however, retracted from, his confession at the trial and denied even having made any such confessional statement. It is true that the conviction of an accused could be based on his retracted confession if the court finds that it was made voluntary and was true. However, the superior courts have consistently held, and it has now become almost a well settled rule of prudence in criminal cases, that the courts before convicting an accused for a criminal offence on the basis of his retracted confession must look for its corroboration in material particulars from other independent piece of evidence in the case." Reliance is also placed on authority reported as "
(Bahadur Khan v. The State PLD 1996 SC 336)" wherein it was held as under.
"Admittedly appellant has retracted from his confession which should be accepted only if it corroborated by clear, cogent and independent evidence. 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 reasons given for retracting is palpably false, absurd and incorrect they can accept such confession without corroboration. But for the safe administration of justice it will be proper, though not necessary to seek for some corroboration for retracted confession. The corroboration of such confession should be of material particulars connecting the accused with the offence".
14. Since neither the delay of ten days in recording the 'confessional statement has 'been explained by the prosecution nor the confessional statement gets corroboration by any other independent evidence. Because the robbed vehicle has not been recovered from possession and pointation of appellant as it was recovered from ravine passed abandoned. Moreover, investigation officer (PW- 5) has deposed that during the course of investigation appellant made disclosure with regard to commission of offence and disclosure Memo was prepared. But neither the disclosure Memo was got exhibited nor any marginal witness of the same was examined. If according to investigating officer that appellant after arrest had made disclosure with regard to the commission of offence, then what prevented the appellant to get recorded his confessional statement soon after disclosure. Non-production of disclosure Memo has further made the case of prosecution doubtful.
15. As the case of the prosecution solely depends on confessional statement of appellant but the same has been discarded on the ground that the same was recorded with inordinate delay of ten days and that too getting no corroboration from any independent evidence. Except confessional evidence no other incriminating evidence is available on record to connect the appellant with the commission of offence, and the confessional statement has already been disbelieved and discarded. The prosecution has been unable to establish its case against appellant beyond reasonable doubt, but the learned trial court without proper appreciation of evidence convicted and sentenced the appellant. Therefore, the impugned Judgment is not tenable in the eye of law.
As such the instant appeal filed by appellant is accepted and impugned Judgment dated 31-03- 2014, passed by learned trial court whereby he was convicted and sentenced is set aside and appellant is acquitted of the charge.
These are the reasons of my short order dated 08-06-2017