1. ' JUSTICE . WALI MUHAMMAD KHAN, (CHAIRMAN).- Arabistan son of Haider, aged 20/21 years resident of Bara; Niamat Shah son of Salamat Shah aged 24/25 years resident of Kohi Bara; Sattar son of Ziarat Shah aged 22 years resident of Kohi, Khan Wali son of Qudrat Mir aged 20/21 years of Kohi, Mujahid son of Zewar Gul aged 20/21 years of Kohi and Saida Khan son of Miras Khan aged 20/21 years of Kohi (both the villages being situated in tribal territory of Khyber Agency) were tried for offence of Haraabah punishable under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with section 149, P.P.C. For forcibly taking away Toyota Land Cruiser (Exh.P.1) Registration No,UN-68- 167 belonging to Food and Agriculture Organisation of the United Nations, alongwith certain articles and cash belonging to Dr. Eric John Steven P.W.12, Abdul Samad Nazri P.W.13, Haji Said Mirza P.W.14 and MA. Ibrahimi (not produced), armed with deadly weapons and in the prosecution of common object of the assembly formed by the accused alongwith the absconding accused, namely, Asmatullah alias Shaitan, Farooq Bangash, Shah Muhammad alias Shado, Sher Gul Kokikhel and Mewa Khan by causing the aforementioned persons to be in wrongful restraint and putting them in fear of death on 1-8-1991 at 1615 hours within the limits of Police Station Badaber and also under section 365-A, P.P.C. Read with section 149, P.P.C.
2. For kidnapping Dr. Eric John Steven, Abdul Samad Nazri, Haji Said Mirza and MA. Ibrahimi for the purpose of extracting money from them, by Mr. Justice Raza Ahmad Khan, Judge, Special Court for Speedy Trials, Peshawar and while acquitting them from the charge of Haraabah, found all of them guilty under section 395, P.P.C. Read with section 391, P.P.C., convicted them thereunder and sentenced each one of them to imprisonment for life and a fine of Rs,1,00,000 each or in default of payment of fine to further 4 years' R.I. Each and also convicted all of them under section 365-A, P.P.C. (as amended vide Criminal Law Amendment Act II of 1991) read with section 149, P.P.C. And sentenced each one of them to death on four counts with a further direction that the sentence passed shall be executed under section 10 of Ordinance XXV of 1991, their movable and immovable properties were ordered to be forfeited to the State, vide order, dated 7-11-1991. They have challenged their conviction and sentences through separate Appeals Nos. 6 of 1991, 7 of 1991, 8 of 1991, 10 of 1991, 11 of 1991 and 12 of 1991 respectively. Since they arise out of the same judgment, we propose to dispose them of through a single judgment.
3. ' The facts of the case culminating in the conviction of the appellants, briefly stated, are that the four kidnapees, namely, Dr. Eric John Steven P.W.12, Abdul Samad Nazri P.W.13, Haji Said Mirza P.W.14 and MA. Ibrahimi were travelling in Toyota Land Cruiser No, UN 68-167 (Exh.P.1), being driven by Haji Said Mirza P.W.14 in a loose convoy consisting of two other vehicles, at about 4-15 p.m. The Land Cruiser in question was intercepted by a pick-up of blue colour wherefrom dacoits armed with kalashnikovs alighted and stopped the Corolla car but allowed it to go, probably because of one of the inmates being a female and thereafter focussed their arms at the Land Cruiser Exh.P.1, entered the same and one of the dacoits pushed aside the driver and himself sat on the driver's seat to drive it himself, another occupied his seat by the side of Dr. Eric John Steven P.W.12. And two others also boarded the same Cruiser and started towards Bara side situated in tribal territory while the other dacoits started in the same direction through their own pick-up. The other two vehicles of the convoy had stayed behind and could not see the mishap. Later on when they could not come across the kidnapped vehicle, they searched for it and ultimately learnt that the Land Cruiser alongwith. The occupants thereof had been kidnapped. Mr. Anthony Fitzherbert P.W. Who was travelling in one of the vehicles of the same convoy later on submitted a written report Exh.P.1/1 which was correctly incorporated in the F.I.R. By Rahatullah Khan S.I. P.W.1.
4. ' Since the occurrence was of an extraordinary serious nature, involving the kidnapping of a senior officer of foreign origin, working in the Food and Agriculture Organization of the United Nations and other employees, the entire police machinery including senior police officers immediately came into action and embarked upon hectic search for the arrest of the dacoits. However, as the dacoits were reported to have entered into tribal territory alongwith the kidnapped Cruiser and the kidnapees, the 'political authorities were geared up for necessary help and assistance for the recovery of the kidnapees. Mr. Wakeel Khan, Assistant Political Agent Bara (C.W.1) who was incharge of the area bad a conference with the concerned Police Station Pushtakhara and thereafter contacted all his informers to collect necessary information during the night and apprise him of the whereabouts of the dacoits and the places where the kidnapees had been concealed.
5. The following morning i.e, 2-8-1991, having been satisfied that Niamat Shah accused/appellant alongwith his gang of dacoits had committed the dacoity by using Datsun Pick-up Exh.P.2 belonging to Malik Sheenak Akbar who had complained about its seizer by the said Niamat Shah on 30-7-1991 through an application Exh.P.C. Which had been marked by him to the Political Tehsildar Bara. He, with the prior approval of the higher authorities, in the company of Abdul Qayum, Political' Tehsildar Bara; Bakhmal Shah, Political Naib-Tehsildar Bara and Khan Muhammad Line Officer, Bara, with the assistance of Masood Scouts and Ithasadars, raided the house of Niamat Shah accused/appellant. Before the actual raid they saw the Datsun Pick-up Exh.P.2, approaching the house of Niamat Shah, carrying certain persons in it. When Niamat Shah accused and the other members of the gang came to know of the raid, they started fleeing from there and the raiding party chased them, there was cross-firing in which accused party also used hand grenades. Sattar and Niamat Shah accused/appellants surrendered themselves first and the others were arrested.
6. The following morning Sattar accused/appellant, on interrogation, disclosed that the kidnapees were detained at village Chora under the control of Mewa Khan accused/absconder and that Farooq Bangash, Shah Muhammad, and Asmatullah alias Shaitan, absconders were looking after them. The elders of the area were entrusted the task of securing the release of the kidnapees in which they were successful and got them released without payment of any ransom on 5-8-1991 and they were handed over to political authorities at 3-00 a.m. The same day at All Masjid.
7. ' As the accused/appellants and their companions had resorted to firing at the raiding party, a case under section 324, P.P.C. As amended by Ordinance 19 of 1991 and 3/4 of the Explosive Substances Act read with section 11, F.C.R. Was registered against them by the political authorities.
8. Accused Sattar. And Niamat Shah were sent to Central Jail, Peshawar on 17-8-1991, Saida Khan, Arabistan and Mujahid on 13-8-1991 and Khan Wali on 20-8-1991.
9. ' During the raid he noticed the Datsun Pick-up Exh.P.2 parked near the Hujra of Niamat Shah and after the completion of the raid the same was taken into possession by Tehsildar with certain articles present therein which were later on handed over to the local police.
10. ' Sultan Akbar Khan, S.H.O. P.W.2, on 4-8-1991 while on patrol duty noticed the Land Cruiser Exh.P.1 blue colour in the limits of village Regi Lalma near Air Force Firing Range, close to the tribal territory, which he took into possession vide memo. Exh.P.B. In the presence of Misal Khan A.S.I. P.W.3. The accused/appellants were formally arrested in this case and their police custody also obtained on 17-8-1991. Accused Sattar and Mujahid were produced before Mr. Rasool Khan, M.I.C. Peshawar P.W.11 for. Recording their confessional statements. Mujahid refused to confess his guilt and accordingly he was sent to jail. However, Sattar accused/appellant in spite of due warning given to him according to law not only confessed his guilt but implicated his co-accused as well vide his confessional statement Exh.P.1 /2. Similarly Saida Khan accused was produced before Mr. Kamran Zeb, M t r. P.W.10 for recording his confessional statement and he too, vide his confessional statement Exh.P.H.1/2, made a clean breast of the entire occurrence and admitted his own involvement in the occurrence as well as that of his co-accused.
11. ' The Datsun Pick-up Exh.P.2 No,PRG'.5645 and the articles found therein were placed in an identification parade conducted by Abbas Khan, Political Naib-Tehsildar P.W.B. Mr. Anthony Fitzherbert correctly identified bag of Khaki colour, small purse of green colour, a pair of clothes of Khaki colour, while MA. Ibrahimi, Abdul Samad Nazir and Haji Said Mirza could only identify the pick- up Exh.P.2. Saida Khan and Khan Wali appellants were also subjected to an identification parade held under the supervision of Nazir Ahmed Naib-Tehsildar P.W.9 and they were correctly identified by Said Mirza, Abdul Samad Nazri and MA. Ibrahimi.
12. ' After completion of the investigation and obtaining of the necessary sanction, challan against the accused was put in the Court of Judge, Special Court for Speedy Trials, Peshawar, who after framing of the necessary charge-sheet and recording of the evidence produced by the prosecution, examining the accused under section 342, Cr.P.C., found them guilty, convicted them and sentenced them as detailed in the introductory part of the judgment.
13. ' We have heard the learned counsel for the appellants, Malik Hamid Saeed, Additional Advocate- General for the State and have perused the record of the case with their assistance. The learned counsel for the appellants at the very outset raised a preliminary legal objection through an application supported by affidavit alleging that the trial Court had failed to comply with the mandatory provision of sections 356 to 360, Cr.P.C. Inasmuch as the entire evidence in the case was recorded in shorthand by the stenographer and never read over to the witnesses in the presence of the accused or their counsel, vitiating the entire proceedings. Since the objection if accepted had to result in the remand of the case, therefore, the arguments of the learned counsel for the parties were heard before dilating upon the merits of the case. The learned Additional Advocate-General in reply to the contention of the learned counsel for the appellants submitted that the learned trial Court had adopted the said procedure with the consent of the learned counsel appearing at the trial stage,. That this objection did not find mention in the grounds of appeal, that no prejudice has been caused to the accused/appellants, and that even according to the contents of the application, and the learned counsel appearing in the trial Court, no objection was taken by them against this mode of recording of evidence. Since the provisions of sections 356 to 360, Cr.P.C. Pertained to trial by the Magistrate and Court of Session, we on our own consulted the High Court Rules and Orders to find out whether any distinct provision is available for the recording of evidence by the High Court and were able to come across Rule 1, Chapter 4, Part I (Crl.) which permits recording of evidence through shorthand by the High Court through stenographers. There appear to be force in the arguments of the learned counsel for the parties that in cases like the one in hand where death penalty is provided for, all possible precautions have to be taken to safeguard the interest of the accused and the recording of evidence through shorthand can create genuine apprehension in the mind of the accused that the evidence may not be correctly typed, but in the instant case it was never agitated that the evidence available on the record is not the evidence given by the witnesses or that any portion of it has been tampered with or wrongly typed. The learned counsel appearing at the trial stage are also present before us and they concede that their consent was obtained by the trial Court beforehand in order to save time for completion of the trial within the time limit of 30 days allowed under the law. The learned counsel for the parties also did not seriously stress their objection as its acceptance can only lead to the retrial of .The case which in its turn might have entailed further agony, mental torture and fmancial loss to the accused/appellants. We feel that no prejudice has been caused to the accused/appellants and accordingly overrule the objection. However, we would advise the learned trial Court to avoid this practice in future for the safe dispensation of criminal justice.
14. ' On the merits of the case, the learned counsel for the appellants emphasised that there was no ocular evidence connecting the accused/appellants with the actual commission of the offence of dacoity or kidnapping for ransom; that the involvement of the appellants in the instant crime is based on mere suspicion and surmises of the political authorities; that the confessions of Sattar and Saida Khan were extracted from them by subjecting them to torture during the police custody preceding the recording of confessions; that the identification parades of Saida Khan and Khan Wali were arranged long after their arrest after allowing opportunity to the witnesses to see them before the parade and their photographs published in the newspapers; that no reliance could be placed on the retracted confessions particularly in case of the co-accused and finally, that whatever action was taken in the tribal territory could not be taken into consideration by the trial Court for an offence committed in the settled area. The learned Additional, Advocate-General controverted these submissions and emphasised, placing reliance on several judgments of the Supreme Court that retracted confession can validly form basis of conviction if corroborated materially from other facts and circumstances of the case against the makers thereof as well as their accomplices. According to him, the confession of Saida Khan and Sattar appellants were inculpatory and implicated their co-appellants as well. For their corroboration he relied on the recovery of Datsun Pick-up Exh.P.2 on the following day of the occurrence from near the house of Niamat Shah accused/appellant alongwith certain articles, the subject of instant dacoity, lying therein, some of which were identified by Mr. Anthony Fitzherbert complainant as belonging to him and the Datsun being identified by MA. Ibrahimi, Abdul Samad Nazri and Haji Said Mirza to be the vehicle Exh.P.2 in which the dacoits had intercepted them and coupled with the identification parade wherein Saida Khan and Khan Wali were correctly identified by P.Ws. MA. Ibrahimi, Abdul Samad Nazri and Haji Said Mirza and also the identification of Khan Wali accused/appellant by Dr. Eric John Steven P.W.12 in Court at the time of his examination from amongst the six accused, as one of the dacoit who sat by his side in the Land Cruiser.
15. ' We have anxiously considered the arguments of the learned counsel for the parties. Admittedly, Saida Khan and Sattar appellants were produced before the Magistrate for recording their confessions straight from police custody but the question is whether this fact alone is sufficient to discard their judicial confessions as being secured under duress. It is pertinent to point out that definite question was put to them regarding these confessions at the time of their examination under section 342, Cr.P.C. In reply they admitted having made the confessions before the Magistrate concerned but alleged that the same were extracted from them as a result of third degree methods employed by the police during the police custody. Both of them were got medically examined before and after the police custody and no sign of physical torture was found on their person by the Medical Officer. It is by now well-settled that the judicial confessions if ring true and voluntary can be made the sole basis for the conviction of the makers thereof. However, if the same are retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In other words in such eventuality independent corroboration from other evidence, direct and circumstantial, is essential. Applying this yardstick, it is to be seen whether these judicial confessions are materially corroborated or not.
16. Both, Saida Khan and Sattar, were arrested by the raiding party of Scouts and Khasadars under the command of Wakeel Khan, Assistant Political Agent on 2-8-1991, the following day of the occurrence and in the encounter Saida Khan also received fire-arm injuries. The Datsun Pick-up Exh.P.2 used in the commission of the offence by the accused/appellants and absconders was recovered at the time of the raid and some articles belonging to the kidnapees were found therein some of which were claimed by Mr. Anthony Fitzherbert in a regular -identification parade (Exh.P.F./1) conducted by Abbas Khan P.W.B. This vehicle admittedly belonged to Malik Sheenak Akber P.W.4 and from him it was taken away by Niamat Shah accused in connection with a tribal dispute and about which he had already submitted an application to Wakeel Khan C.W.1, who in his turn, had marked it to the Political Tehsildar on 30-7-1991. The documents pertaining to the ownership of the vehicle and its purchase by Malik Sheenak Akber P.W.4 are also exhibited on file.
17. None of the accused/appellants including Niamat Shah claimed the ownership of the Datsun Pick- up in question and as such the evidence of Malik Sheenak Akber stands unrebutted. The Datsun was mixed up with other vehicles of the same type and description and the kidnapees, namely, MA.
18. Ibrahimi, Abdul Samad Nazri and Haji Said Mirza correctly picked up the same as the vehicle in which the accused/appellants and the absconding accused had intercepted the Land Cruiser (Exh.P.1) and kidnapped them and their companion Dr. Eric John Steven to the tribal territory, in a regular identification parade conducted by Abbas Khan P.W.B. Additionally, accused Saida Khan was placed in an identification parade under the supervision of Nazir Ahmed P.W.9 and he was correctly picked up as one of the dacoits who kidnapped them, by P.Ws. MA. Ibrahimi, Haji Said Mirza and Abdul Samad Nazri. Mr. Wakeel Khan, Assistant Political Agent Bara C.W.1 who also possessed Magisterial powers, commanded the raiding party and arrested the accused/appellant Saida Khan. According to his deposition on oath, Sattar accused disclosed that the kidnapees were kept in the house at village Chora with Mewa Khan accused and their accomplices, namely, Farooq Bangash, Shah Muhammad and Asma tullah alias Shaitan accused/absconders are looking after them. This information ultimately led to the recovery of the kidnapees through the good offices of local Jirga. This disclosure, of course, was made within the tribal territory beyond the jurisdiction of the Courts functioning the settled area but there is no legal bar to take into consideration the deposition on oath of Mr. Waked Khan, a responsible judicial Officer, though at the relevant time posted in the tribal territory. Consequently, we -are convinced that the judicial confessions of Saida Khan and Sattar are voluntary, recorded without any compulsion and get sufficient corroboration from the other material evidence. Available on the record. The learned trial Court has rightly made them the basis of conviction of the makers thereof, namely, Saida Khan and Sattar.
19. ' Khan Wali accused/appellant has not made any confession and this fact per se points to the bona fides of the investigating agency in the investigation of the case. His name words mention in the confessions of Saida Khan and Sattar accused/appellants as a member of the gang of dacoits and having participated in the entire process from start to finish. He has been specifically given the role of getting into the Land Cruiser by Saida Khan and Sattar in their judicial confessions and kidnapping the Cruiser alongwith the inmates/kidnapees. He was picked up by Dr. Stevens at the time of his evidence in Court as the person who had got into the Land Cruiser Exh.P.1 alongwith the other dacoits and sat with him while his companion drove away the vehicle towards tribal territory.
20. He was also arrested on the second day of the occurrence and was correctly identified in identification parade held under the supervision of Nazir Ahmed P.W.9 by MA. Ibrahimi, Haji Said Mirza and Abdul Samad Nazri P.Ws. As the assailant of the crime in question. Mr. Abdul Samad Nazri P.W.15 and Haji Said Mirza P.W.14, no doubt, have made certain concessions in favour of the accused regarding the identification. Parade in question but that apparently is the result of fear from or threat on behalf of the accused appellants/absconders. As such there is ample evidence to connect Khan Wali accused/appellant with the commission of occurrence and he too, was rightly found guilty by the trial Court.
21. ' The case of Niamat Shah accused/appellant, more or less, stands on the same footing as that of Khan Wali appellant. He too, has not made the confession but is duly mentioned as accomplice in the instant crime by Saida Khan and Sattar in their judicial confessions. The raiding party encircled his house for the arrest of assailants and he alongwith his co-accused and absconders tried to make good their escape but was ultimately arrested. The Datsun Pick-up Exh.P.2 which was proved to have been taken away from Malik. Sheenak Akber and was used in the commission of offence according to the kidnapees, was recovered from near his house by the raiding party. From the overall appraisal of the evidence it can safely be concluded that he was the ringleader behind the whole occurrence and has been rightly convicted by the trial Court.
22. ' As regards the remaining two appellants, namely, Arabistan and Mujahid they are simply mentioned in the judicial confessions of Saida Khan and Sattar without attributing them any positive role. They have neither made any confession, nor were subjected to identification parade by the kidnapees, nor they disclosed anything pertaining to the occurrence to Mr. Wakeel Khan, Assistant Political Agent C.W.1. Since the judicial confessions referred to above have been retracted and there is no other corroboration qua the involvement of these accused/appellants, we are of the opinion that for the safe dispensation of criminal justice, they are entitled to be extended the benefit of doubt and in consequence we set aside the conviction and sentences of Arabistan and Mujahid appellants and acquit them of the charges in the instant case. They shall be set at liberty if not required in any other case of the settled area or tribal territory.
23. ' As regards the quantum of sentence imposed upon Niamat Shah, Sattar, Khan Wali and Saida Khan appellants under section 365-A, P.P.C. As amended vide.Criminal Law Amendment Act II of 1991 read with section 149, P.P.C. The learned trial Judge has awarded them death penalty on four counts for the reason that as per list furnished by Waked Khan C.W.1 the accused were wanted in a number of cases of dacoity, abduction and car lifting and therefore, they did not deserve any leniency. Since the other cases referred to by the learned trial Judge are still pending adjudication and no question regarding those cases were put to the accused in their supplementary statements under section 342, Cr.P.C. To explain their position, the learned trial Judge legally erred in taking them into consideration while imposing death sentence on the aforementioned appellants. We think that the lesser penalty of imprisonment for, life provided under section 365-A, P.P.C. Will amply meet the ends of justice-and we accordingly alter the sentence from death to imprisonment for life on each count. Their conviction and sentences under section 395, P.P.C. Read with section 391, P.P.C. Are maintained. The appellants are not allowed the benefit of section 382-B, Cr.P.C. In view of heinous nature of offence. The order of forfeiture of their movable and immovable property to the State is also maintained.