ROZI KHAN BARRECH, J.---The appellant was involved in case FIR No. 31/2019 dated 04.11.2019 of Levies Thlana Khanozai Pishin registered under section 394, P.P.C. and was tried by learned Additional Sessions Judge, Khanozai ("trial court"), The trial court seized with the matter in terms of the judgment dated 10.08.2020 ("impugned judgment"), convicted and sentenced the appellant in the following terms:-- "...since the accused person is young and first offender , there-fore, lenient view is taken and he is convicted under section 394, P.P.C. and sentenced to suffer for 07 years R.I. and with fine of, Rs.50,000/- (Fifty Thousand Rupees) and in default, further suffer S.I. for two months. Benefit of section 382-B, Cr.P.C. is also extended in favour of convict. "
2. The prosecution story as disclosed in the complaint Ex.P/4-A recorded on the statement of Shabbir Ahmed son of Haji Abdullah,. complainant/PW -4 is that on 04.11.2019 he was coming from Moghtian on his motorcycle towards Khanozai. At 12:45 p.m. a person (seemingly a Talib) was standing on the roadside at Killi Raigi, who indicated the complainant to stop. When the complainant stopped, the said person stated that he wants to go to Shahrag and to drop at Ziarat cross, so he seated on the bike and at about 1:00 pm when they reached near Gharki cross, where the said person took out a knife, pointed at the neck of the complainant and told him to stop. The complainant stopped the motorcycle; he was forcibly from the bike and was taken to the roadsid e, whereafter his hand and feet were tied with rope, due to resistance of the complainant, his right hand was injured. Afterwards, the accused tried to start the motorcycle but failed to do so due to Anti-theft switch. Meanwhile, the complainant somehow came to the roadside and told the passersby that the said person is a thief, where-after the accused was apprehended by the people, and thus the Gharki Thana officials were informed. The levies officials of levies thana came to the spot, and on inquiry , the accused disclosed his name as Rehmatullah caste Mulakhail, resident of Afghanistan. Hence the crime report.
3. After completion of the investigation the challan was submitted before the trial court, the charge was framed against the accused/appellant to which he pleaded not guilty and claimed trial, whereafter the prosecution in order to substantiate the accusation against the appellant produced as many six witnesses. The statement of the appellant/accused was recorded under section 342, Cr.P.C., wherein he refuted the allegation levelled against him and professed his innocence., The appella nt recorded his statement as envisaged under section 340(2), Cr.P.C. but did not produce any witness in his defense. After hearing arguments advanced by the learned counsel appearing on behalf of both the parties, the trial court while evaluating the evidence available on record found the version of the prosecution proved beyond the shadow of reasonable doubt. Resultantly , recorded conviction and sentenced against the appellant in the above terms. Being aggrieved from the' impugned judgment dated 10.08.2020, the appellant has filed the instant appeal.
4. Arguments advanced from both sides have been heard. I have also minutely gone through the record available on file with the able assistance of learned counsel for the parties.
5. The prosecution in order to prove its case produced PW-4 Shabbir Ahmed, who is complainant of the case. He deposed before the trial court that on 04.11.2019 at 1:00 pm when he was coming on his motorcycle and reached near Raigi area, one person (appellant) who appeared to be a "Talib" was standing on the roadside, who signaled him to stop and ask him if he would drop him at Ziarat cross as wanted to go to Shahrag, however on the way the appellant took out a knife and forcibly stopped the bike and beat him up due to which he also received injuries. He further stated that the appellant tried to snatch his motorcycle. When the complainant was subjected to cross- examination, he denied the suggestion that A on the day of occurrence, he attempted to molest the appellant. He further stated during cross-examination that he did not know the age of the accuse d to be sixteen years. It has also come on record that the age of the accused is seventeen years, which was mentioned in the statement of the accused recorded under section 164, Cr .P.C. as well as in his statement recorded under section 340(2), Cr .P.C.
6. PW-6 Jalaluddin Naib Risaldar who conducted the investigation of the case stated during cross-examination that on 04.11.2019, the accused filed an application for registration of the FIR against the complainant in respect of molesting him. He further stated during cross-examination that he conducted an inquiry under section 157(2), Cr.P.C., however , he stated that the father of the accused did not produce any witne ss in the said inquiry . He further stated during cross-examination that the accused is a student. On the other hand, the record transpires that the age of the complainant is thirty six years. According to the medical certificate, the complainant received two injuries on his hand, and there was slightly omrassion marks on his neck, meaning thereb y that both the accused and the complainant scuffled with each other at the time of occurrence. Under such state of affairs, how was it possible that a student of the age of 16/17 years tied the hands and feet of a person of the age of the complainant, i.e. 36 years.
4. PW-4/complainant further stated in his statement that there was an anti-theft switch in his motorcycle and the accused tried to start the bike, but in the meanwhile, he came struggling to the road and told the people that the accused is a thief and was trying to snatch his motorcycle. He further stated that, people caught hold of the accused and informed the levies officials. It does not appeal to a prudent mind that how did the complainant come to the road and told the people about the occurrence, even though his hands and feet were tied, and the accused would still await the people and the levies of ficials to come and arrest him.
5. PW-1 Muhammad Siddiq Khasadar levies, who is the recovery witness of the knife allegedly recovered from the accused, stated that on the 04.11.2019 he reached the place of occurrence along with the investigation officer Dafedar Hussain Ahmed and recovered the knife from the accused/ appellant. He stated during cross-examination that they reached the place of occurrence, at 1:10 p.m. and remained there for fifteen minutes. He further stated during cross-examination that they took the accused/appellant to Khanozai, levies thana. He also stated during cross-examination that they reached the Levies Thana at 2:10 p.m.
On the other hand, PW-6 Jalaluddin Naib Risaldar stated in his statement that on 4.11.2019 after registration of the FIR, the investigation was handed over to him. During cross-examination, he stated that the investigation was handed over to him at 2:00 p.m. He further stated during cross-examination that they reached the place of occurrence at 2:30 pm; that when they reached at the spot, the complainant and other levies officials were present at the spot. It is worthwhile to mention here that the alleged occurrence took place on 04.11.2019 at 1:00 p.m. and the FIR was registered on the same date at 1:50 p.m.
9. The contradictory statement of both the above witnesses with regard to the time of lodging the FIR, casts reasonable doubt in the prosecution case and it has not come on record that how and who recorded the statement of the complainant and whether the statement was recorded on he spots or the levies thana.
PW 1 stated during cross examination that they reached the place of occurrence at 1:30 p.m. and after fifty minutes they proceeded to levies thana and reached levies thana at about 2:10 p.m. The accused and the complainant also accompanied, but the investigation officer stated during cross-examination that he reached the place of occurrence at 2:30 p.m., the complainant, the other levies of ficials and people were already present on the spot.
10. There are material contradictions in the statement of the witnesses. It is a settled principle of law that person making contradictions and improvements cannot be held worthy of credence. The prosecution produced Dr. Habib- ur-Rehman PW-3, who issued the medical certificate Ex.P/3-A according to which the complainant received injuries. It is settled principle of law that the injuries of a PW is only an indication of his presence at the spot but is not informative prove of his credibility and truth.
11. So far as the other piece of evidence, i.e. the recovery of the knife is concerned, the prosecution produced PW- 1 Muhammad Siddiq, who is the recovery witness of the alleged occurrence. According to his version, when he reached the place of occurrence and knife was recovered from the accused. During cross-examination, he stated that when they reached the place of occurrence, many people had gathered at the spot, who had apprehended the H accused. It does not appeal to a prudent mind that an accused who had been apprehended by the people would keep the knife with himself till the time when the levies officials reached, i.e., after ten minutes. This aspect of the matter creates reasonable doubt in the prosecution case. Even otherwise, the prosecution did not produce any corroborative evidence in support of the statement of PW-1, and none of the other witnesses stated a single word to the effect that the knife was recovered from the accused. PW-1 stated during cross-examination that the knife, which was produced before the court was not stained with blood. The investigation officer also did not send the knife to the Forensic Science Laboratory; therefore, this piece of evidence provides no help to the prosecutions case.
The complainant/PW -4 and PW-1 Khasadar Levies stated in their statement and cross-examination that the accused was apprehended by the peop le of the locality . PW-1 stated that when they reached the place of occurrence, many people had gathered there who had apprehended the accused. The investigation officer neither recorded the statements of the private persons under section 161, Cr.P.C. nor produced them before the trial court.
The private persons who informed the levies officials in respect of the occurrence and allegedly apprehended the accused could have further strengthened the prosecution version. Non-production of such important witnesses, as provided under Article 129(g) of Qanun-e -Shahadat Order , 1984 and dictum laid down by the Hon'ble Supreme Court in the case of Lal Khan v. The State (2004 SCMR 1847) would cast adverse inference, which brings us to the irresistible conclusion that if the said witnesses had been produced they would not have supported the prosecution version.
Even otherwise, when a single drop of dirt is mixed and dissolved in the tank of bulk clean water , it makes the whole dirty. In the same manner , when some falsehood is mixed with truth, the same makes the truth carrying the possibility of falsehood as a whole. The Hon'ble Supreme Court of Pakistan had disbelieved the statement of an alleged eye-witness whose conduct, remained unusual in a case law titled "Muhammad Khan and another v. The State reported as 1999 SCMR 1220 ", wherein it was held that: "It is axiomatic and universally recognized principle of law that conviction must be founded on unimpeachable evidence and certainty of guilt and hence any doubt that arises in the prosecution case must be resolved in favour of the accused. It is, therefore, imperative for the Court to examine and consider all the relevant events preceding and leading to the occurrence so as to arrive at a correct conclusion. Where the evidence examined by the prosecution is found inherently unreliable, improbable and against natural course of human conduc t, then the conclusion must be that the prosecution failed to prove guilt beyond reasonable doubt. It would be unsafe to rely on the ocular evidence which has been moulded, changed and improved step by step so as to fit in with the other evidence on record. It is obvious that truth and falsity of the prosecution case can only be judged when the entire evidence and circumstances are scrutinized and examined in its correct perspective".
12. The judicial confession of the appellant is another piece of evidence that has been relied upon to convict the appellant, who was produced before PW-5 Judicial Magistrate Khanozai, who recorded the statement of the appellant under section, 164, Cr .P.C. on 14.1 1.2019. The accused stated in his statement that: "About ten days ago after Madrassa hours, I was coming to my house and I took a ride with one motorcycle, and when we reached Gharkai cross, I told the rider to drop me off and I also took out a knife and demanded money from him, however the motorcycle rider dropped the bike and started fleeing towards the other side but I attacked the rider, who received injuries on his fingers; that people gathered on the road and caught hold of me and handed me over to the levies officials; that I feel that I have done wrong and in future, I will refrain from doing such wrong."
13. Having given my anxious consideratio n to the foregoing background of the matter , the FIR as well as in view of the statements of the prosecution witnesses on the one hand and the retracted confession of the appellant on the other , it has been observed that there are two sets of evidence on record. First set of evidence as already discussed consists of FIR, court statemen t of the cornplainant/PW -4, who stated that the accused took out a knife and kept it on his neck and tied his hand and feet with rope and thereafter tried to snatch his motorcycle and the second and crucial set of evidence consists of the confessional statement of the appellant before the Judicial Magistrate Khanozai recorded under section 164, Cr.P.C. The statement of the appellant recorded under section 164, Cr.P.C. has not corroborated with the FIR as well as the statement of the complainant/PW -4. The accused neither stated a single word that he tied the hand and feet of the complainant nor he stated a single word that he kept the knife on the neck of the complainant and tried to snatch his motorcycle.
14. During the trial, the appellant retracted his judicial confession. At the time of alleged occurrence, age of the accused was 16/17 years. The question before this court is as to whether the appellant who, was a minor at the time of alleged occurrence could have been dealt with under the ordinary law. In the present case the trial court has mainly relied on the confessional statement of the accused, the trial court was under obligation to consider the age and every aspect of the confessional statement for getting satisfaction as to whether all the formalities have been complied with or not. It is well settled that before recording the confessional statement of the accused, the Judicial Magistrate should essentially observe all the mandatory precautions as per High Court Rules and Procedure so that all signs of fear inculcated by the investigation agency in the mind of the accused are to be shed out. But I see no such precautionary measures in the present case, which in the circumstances of the case were pre-requisite for recording the confession of a minor . Reliance is placed on the case titled as Azeem Khan and another v. Mujahid and others ( 2016 SCMR 274 ).
The appellant, being a minor , was provided with no opportunity of counseling, neither by his guardian nor by a lawyer . It was desirable in the interest of justice that the appellant, being a juvenile, should have been provided counseling facility of a guardian or a lawyer of his choice but no such opportunity has been afforded to him by the Judicial Magistrate before recording his confessional statement. The learned Judicial Magistrate did not state a single word in his statement as well as in the certificate issued by her, i.e. Ex.P/5A that any offer was made to the appellant for counseling. Under such circu mstances, I have no other option but to presume that no offer was made to the appellant for counseling. Reliance in this regard is placed on the judgment of the Apex Court in the case titled "Hashim Qasim and another v . The State" ( 2017 SCMR 986 ).
15. The confession of the minor is to be assessed on the same touchstone as to that of the statement of a child witness rather child witness is brought to the dock by relatives while on the contrary child accused is brought to the court by police officials for recording his confessional statement where the possibility of tutoring and police fear is always there. Reliance is placed on the case of State through Advocate General Sindh, Karachi v. Farman Hussain and others ( PLD 1995 SC 1 ).
It is also observed that the appellant was able, to understand the nature of ques tions put to him by the Judicial Magistrate or otherwise, in this regard even the Judicial Magistrate did not put the question to the appellant for recording his statement that after recording his statement he would not be handed over to police or levies and in this regard another example is the answer given by the appellant to Question No. 5 that why he is recording his statement under section 164, Cr .P.C? the answer of the appellant was that "because I have done wrong."
16. It can easily be assessed from the answer given by the appellant that he was unable to understand the nature of the question or to give rational answer thereof. Under such circumstances, when utmost care is to be taken while assessing the testimony of a child witness, on the same yardstick extraordinary care and caution should have been taken by the Judicial Magistrate while recording the confessional statement of the appellant and the trial court as well as by evaluating his such statement for his conviction. The learned Judicial Magistrate filled the answers without adhering to the codal formalities and without considering the, P intellectual level of the minor who was unaware of the consequences of his statement, likewise, the possibility of the appellant being minor to have been tutored or tortured by the local police before recording his confessional statement cannot be ruled out especially when no opportunity of counseling by parents or a lawyer was af forded to him.
17. The learned Judicial Magistrate after recording the statement of the appellant under section 164, Cr.P.C. handed over the appellant to the same levies officials who produced him before her to take him for judicial remand.
This fact is also confirmed by the learned Judicial Magistrate Khanozai PW-5, who stated during cross-examination that after recording the statement of the appellant under section 164, Cr.P.C., he was handed over to the investigation officer for sending him to the judicial lockup. This fact was further confirmed by the investigation officer PW-6, who stated during cross-examination that on 14.11.2019 at 3:00 pm or 3:30 pm he send the accused to judicial lockup. In the above circumstance s, the confessional statement of the accused/appellant was not voluntary and gross illegality was committed by PW -5/Judicial Magistrate Khanozai.
18. PW-5 Judicial Magistrate Khanozai has also not given sufficient time for reflection before recording the statement of the accused/appellant under section 164, Cr.P.C., as it was incumbent upon her to have given sufficient time for reflection, i.e. thirty minutes, with three intervals, henceforth by not doing so, PW-5 failed to observe pre-cautions held necessary before recording a confessional statement. Neither the PW-5/Judicial Magistrate stated a single word in her statement that she gave time for reflection to the appellant nor mentioned the time of reflection in her certificate issued beneath the confessional statement of the appellant. PW-5 stated during cross-examination that she recorded the statement of the appellant under section 164, Cr.P.C. within 15/20 minutes. The investigation officer stated during cross-examination that Judicial Magistrate recorded the statement of the appellant within half hour. It is very clear from the above statements that no time for reflection has been given to the appellant before recording his statement under section 164, Cr.P.C. , as envisaged under section 364, Cr.
P.C., therefore the confessional statement of the appellant does not appear to be true and voluntary .
The appellant was arrested on 4.11.2019, and he was produced before the learned Judicial Magistrate Khanozai on 14.11.2019 after ten days of his arrest for recording his confessional statement under section 164, Cr.P.C. The said delay has not been plausibly explained by the prosecution, which has highly injured its credibility , and the same cannot be accepted as confidence inspiring against the appellant. Reliance is placed in Naqeebullah's case (PLD 1978 SC 21) and Khalid Javed and another v. The State (2003 SCMR 1419 ). Reference may also be made to the case of Shoukat Saeed v. The State PLD 1978 Quetta 1 and Pato and another v. The State (2012 MLD 1358 ).
19. The confessional statement is not to be accepted as a substantive piece of evidence and to place conviction on it alone unless it is corroborated in each and every detail by other corroborative and circumstantial evidence is not warranted. The prosecution case is full of contradictions and manner and mode of occurrence is highly doubtful, and the evidence produced in support of its case is not confidence inspiring. The courts are always vigilant, that the prosecution shall prove in all the circumstances that the confessional statement or extract thereof was free of all kinds of coercion, threat, promise and that it was voluntary . Retracted confession shall not be accepted as Gospel's truth. The court shall it carefully scrutinize such confessional statement to ascertain as to whether all the formalities required thereto of the recording of such statement were fulfilled by the court, which is recording such statement of a juvenile accused.
From the facts and circumstances narrated above, I am persuaded to hold that conviction passed by the learned trial court against the appellant in the circumstances is against all canons of law recognized for the safe dispensation of criminal justice. As per dictates of law, benefit of every doubt is to be extended in favour of the accused. Resultantly while setting aside the conviction and sentence recorded by the trial court in terms of judgment dated 10.08.2020 passed by learned Additional Sessions Judge, Khanozai in P.P.C. case No. 02/2020, Crl. Appeal No.27/2020 filed by the appellant is allowed as a consequence whereof he is ordered to be acquitted of the charge in FIR No. 31/2019 registered under section 394, P.P.C. at Levies Thana Khanozai, District Pishin. He is directed to be released forthwith if not required in any other case.