' TANZIL-UR-REHMAN, J.-- On 5-2-1978, a minor girl namely Taranum Aziz daughter of Mirza Aziz Baig aged about 8 years left for her school as usual, but she did not return to her house. Her father who reached his house at about 8-00 p.m. In the night started searching for her, here and there, but she could not be found. At about 10-00 p.m. The uncle of the said girl, namely Jamil Ahibed Baig reported the matter at Gulbcrg Police Station, which was recorded in the Police Diary. On the following day, the father visited the school and met P.W. Orangzeb who was the school-fellow of Taranum Aziz. Orangzeb informed him that on 5-2-1978, when the school was over, he and Taranum Aziz were passing by road towards their house, when a white colour car stopped by the side of Taranum Aziz and that some body from inside the car opened the door and Taranum got in the said car which, then, drove her away. On receipt of this information, the father concluded that his daughter had been kidnapped and, as such, he lodged a formal complaint with the police station on 6-2-1978.
2. On 7-2-1978 at about 8-30 a.m. When one friend of Mirza Aziz Baig, named Muzammil had been to his house, he was informed by him that respondent Ishtiaq (accused) has given him a letter which was addressed to the father of Taranum by one July Khan, through which ransom amount in the sum of Rs,1,00,000 was demanded for the release of his daughter. Her father, immediately, took that letter to D.S.P. Abdullah Khan of Liaquatabad Police Station, Karachi which was seized under a Mashirnama by C.IA. Police which was at that time investigating the case. Thereafter, P.W. Mehboob Khan who was investigating the case forwarded that letter to the handwriting expert D.S.P. Jafferi and supplied photo copy thereof to all the police stations of Karachi, as directed by his superiorS.
3. On 10-2-1978, dead body of Taranum Aziz was found lying near the Shia Orphanage, Federal 'B'
Area, Karachi which was identified by Jamil Ahmed, uncle of the deceased. As the dead body of the deceased was found within the jurisdiction of Joharabad Police Station, Karachi, the Incharge Muhammad Khan, S.I.P. Was directed to take up the investigation.
4. On 23-2-1978 on spy information, one Ayoob (convict) was sent for by S.I.P. Muhammad Khan who interrogated him as a suspect. Ayoob gave 23 specimen writings to the said Police Officer. He, being prima facie, of the opinion that the writings given by Ayoob tallied with the writing of the ransom letter, Muhammad Khan S.I.P. Sent those writings to handwriting expert, D.S.P. Jafferi and on receipt of his opinion in positive, he arrested Ayoob. Thereafter, as a result of interrogation of Ayoob the remaining accused Tauqir Alam (convict) and respondents (accused) Nayyer Mirza, Zafar Mashkoor, and Ishtiaq Ali were arrested. All the said accused were produced before P.W. Bashir Ahmad Chishti, Magistrate who recorded their confessions. After usual investigation a challan was produced in the Sessions Court, Karachi against all the accused. The learned trial Judge, by his judgment, dated 5-4-1984 convicted and sentenced to death under section 304/34, P.P.C., the accused Ayoob and Tauqir Alam and acquitted the other accused/respondents, namely, Nayyer Mirza, Zafar Mashkoor and Ishtiaq Ali. Being aggrieved of the said judgment, the State has filed the above criminal Acquittal Appeal against the said accused acquitted.
5. The cases of Ayoob and Tauqir Alam came up for confirmation of death sentence alongwith Criminal Appeals Nos. 37 and 38 filed by the said convicts, Ayoob and Tauqir. The said appeals alongwith confirmation case came up for regular hearing before a Division Bench of this Court comprising of Sajjad Ali Shah and S. Haider Ali Pirzada, JJ. The said appeals were allowed and reference to confirmation of death sentence was rejected by theirjudgment, dated 3-7-1985. It is noticeable that no appeals were preferred by the State to the Supreme Court against that judgment.
6. The respondents in their statements, under section 342, Cr.P.C. Denied all the allegations of the prosecution and retracted from their confessions.
7. All the three respondents stated that their confessions were obtained under duress and that they had filed complaints against police officers which are pending in the Court of VIth Additional Sessions Judge, Karachi.
8. The main contention of the learned counsel for the State related to the judicial confessions of the three respondents made by them before the Magistrate. It was submitted by the counsel that the learned trial Judge has committed an error of judgment by saying that the respondents had retracted their confessions. It was further submitted that during the course of arguments, it was specifically pointed out that as per their section 342, Cr.P.C. Statements, it was the case of the respondents that they made no statement before the Magistrate and that their signatures were only obtained by him on some written papers. Thus there was a denial on their part for having made a confessional statement.
9. At the outset, before examining the above contention of the learned counsel, we may mention that the scope for interference in an acquittal appeal, as compared to an appeal against conviction, is somewhat limited. The High Court may interfere in the judgment of acquittal of the accused when it comes to the conclusion that the trial Court has disregarded material evidence or misread the evidence or received evidence illegally or the judgment is against any provision of law.
If an authority is needed, the same may be found in Gulam Sikandar v. Mumtaz Khan PLD 1985 SC 11, wherein it was observed that:-
(1) "In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the finding of Court acquitting the accused. This approach is slightly different than that in appeal against 'conviction when leave is granted only for the re-appraisement of evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions: One initial, that, till found guilty, the accused is innocent; and two that again after that trial a Court below confirmed the assumption of innocence.
(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below; (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) ...............................................
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. Lf, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion.' and that too with a view only to avoid grave miscarriage of justice and for no other purpose. The important test visualized in these cases, in this behalf, was that the findings sought to be interfered with, after scrutiny under the foregoing searching light, should be round wholly as artificial, shocking and ridiculous."
10. It seems pertinent to reproduce an extract from judgment in Sheo Swarup's case reported in AIR 1934 PC 227, wherein it was observed that:- ' in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any 'doubt; (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
11. In the light of the foregoing principles, we may say that the learned counsel for the State did not even make an attempt to show that the acquittal of the three respondents before us was on account of non-consideration or misreading of any piece of evidence or that the trial Court received evidence illegally.
12. Reverting to the confessions of the respondents/accused, the contention of the counsel, in so far as it relates to the difference between retraction and denial, seems to be fallacious, if not superfluous. Retraction, in its literal sense, means 'drawing or pulling back', whereas denial means 'denying of the existence or reality of a thing' or 'refusal to acknowledge'; a `disowning "disavowal'.
Both the terms, therefore, imply contradicting a thing which is shown to exist. To us, in the fact, as alleged, that no confession was recorded; the respondents were made to sign blank papers under duress, it makes little difference in effect and consequence if it is termed as 'retraction' or 'denial' by the respondents/accused or the prosecution.
13. However, before dealing further with the contention, we must analyse the legal position and effect of a retracted confession.
14. In Qalandar Bux v. The State PLD 1964 (W.P.) Kar. 269 it was observed that: "It is settled that the evidentiary value of a retracted confession against a co-accused is small and that the very fullest corroboration of such a confession is necessary, even where the confessions is true and voluntary."
15. In Ramzan v. The State PLD 1966 (W.P.) Kar. 242, it was held that `retracted confession cannot legally be taken into consideration against the makers of those confession unless they are corroborated in material particulars by some other evidence on the record except the extra- judicial confession alleged to have been made by the respondent."
16. In State of Uttar Pradesh v. Boota Sing and others AIR 1978 SC 1770 (1775), it was observed that:- "A retracted confession can be acted upon only if substantially corroborated by independent circumstances. It is not necessary that a retracted confession should be corroborated in each material particular, but it is sufficient that there is a general corroboration of the important incidents mentioned in the confession."
17. Learned counsel has not been able to satisfy us that there was any corroborative evidence to support the confessions of the respondents.
18. We also had the benefit of going through the judgment of the Division Bench, which heard the criminal appeals of the two convicts, Ayoob and Tauqir, alongwith confirmation case, whereby the said two convicts were acquitted. And reference for confirmation was rejected. In the said judgment, the learned Judges discussed in detail (pages 22-56) the nature of all the five confessions. The learned Judges thoroughly examined the corroborative evidence, if any, and found that 'no satisfactory corroboration is available against appellants Ayoob and Tauqir to supplement their retracted confessions." (p.56). The same thing we may observe against the present three respondents. In fact, the learned trial Judge, too, did so hold in his judgment in respect of the three respondents.
19. The learned Judges divided the confessions into two parts; First, before kidnap and Second, after the kidnap. They found that there were certain material discrepancies in the said confessions which have remained unexplained (pages 2240 of the judgment). It was thus observed in the judgment as under:- "It is clear that there are variations and discrepancies in the confessional statements of accused persons in their narration of story of incident. These variations and inconsistencies reflect upon the credibility of the story of the incident. On reading the confessions of all the accused persons, one cannot avoid impression that story is not narrated in a truthful manner. Had the story been true then there would have not been discrepancies and contradictions and variations in the statements of all the accused persons and their statements would have reflected consensus and unanimity on the narration of story."
20. Now, as to the legal requirements of recording judicial confession, reliance is placed by us on a decision of another Division Bench of this Court, comprising of Ajmal Mian and Munawar Ali Khan, JJ 1984 P Cr. L J 611. Munawar Ali Khan, J., who delivered opinion of the Court, referring to several judgments, observed that:- "The view that crystallises from the above authorities is that Courts must look for strict compliance of subsection (3) of section 164, Cr.P.C. Before proceeding to determine the voluntary character of the confessional statement. It has been noticed that the Magistrates who are charged with a duty of recording confession do not take the process of recording confession seriously with the result that they invariably act in mechanical way without applying their mind as to the legal prerequisites to be observed and the manner in which their compliance is to be made. It is high time that we should reiterate the procedure which is followed in recording confession for their guidance.
Magistrate would be well-advised to follow the procedure which is given below:- 'As soon as accused is produced for confession, his handcuffs should be removed and all the police officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter, he should be warned that he is not bound to make any statement but if he did so, it could be used as evidence against him. Then following questions should be put to him:-
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim The learned Judges after discussing the evidence of P.W.9, the Magistrate, particularly the cross-examination, held that the requirements of section 164(3) of the Criminal Procedure Code 1898 were not fulfilled in the case and that the confessions were not voluntary (P.63). We would respectfully adopt the reasoning and finding of the learned Judges of the said Division Bench and hold that the confessions of the three respondents before us were also made by them involuntarily. It hardly needs to be stated that the confession, if held to be made under coercion, is inadmissible in law as provided under section 24 of the Evidence Act, 1872, as then in force.
21. Learned counsel for the State, next submitted that the learned trial Judge was wrong in acquitting the three respondents after holding that the deceased Taranum Aziz was kidnapped, raped and sodomy was committed upon her and that all the accused joined together in committing murder of the girl in pursuance of such common intention. The contention is misconceived, firstly, because there is no direct evidence against the respondents. The mainstay of the prosecution has been the judicial confessions which, having been retracted, have already been held untrue and involuntary. In any case, the learned Judges in the two appeals, referred to above having examined the report of the Chemical Examiner and other circumstantial evidence negatived the finding of the learned trial Judge and acquitted the two accused/convicts.
Respectfully following the same reasoning, we uphold the judgment in acquittal of the three other accused who are respondents in the above appeal before us, as we have no reason to take a different view.
22. For the reasons aforesaid, the Criminal Acquittal Appeal is dismissed, and the surety bonds executed on behalf of the respondents will stand discharged.
' The above are the reasons for our short order, dated 23-2-1989 dismissing the appeal on conclusion of the arguments.