1. ' SYED IBNE ALI, J.---Accused Shahidullah alongwith accused Sardar Alam alias Sardarai, Aslam Khan, Asmatullah alias Patti and Moeenullah was tried in the Special Court for Speedy Trials, D.I.
2. Khan on the charges under sections 120-B/420/382, P.P.C. As a result, the learned Judge, Special Court convicted accused Asmatullah, Sardar Alam alias Sardarai and Shahidullah and sentenced them to seven years' R.I. Each and a fine of Rs,10,000 or in default further R.I. For one year each. The said accused were further convicted under section 414, P.P.C. And sentenced to R.I. For two years each. Accused Asmatullah was also convicted under section 420, P.P.C. And sentenced to R.I. For seven years and a fine of Rs,5,000 or in default further R.I. For six months. The sentences of imprisonment were ordered to run concurrently. The other accused, namely, Aslam Khan and Moeenullah were, however, acquitted vide judgment, dated 29-9-1991.
3. ' Out of the convicts, only Shahidullah has preferred before this Court appeal to question the legality of his convictions and sentences.
4. ' The prosecution case briefly is that Haji Abdul Qayum (P.W.14) was the owner of Datsun No,BUB- 5285. Complainant Najibullah (P.W.1) was its driver and Sayed Usman (P.W.2) cleaner. The Datsun was being plied in between Serai Naurang and Tarkha Bazidkhel.
5. ' On 15-7-1991 at 1545 hours, accused Asmatullah already known to complainant Najibullah came to Kakki Stand Serai Naurang. He hired the Datsun to Azim Kala for Rs,200. He told the complainant that a lady would be picked up from Azim Kala. Accused Asmatullah seated in front. On their way to Azim Kalla accused Aslam Khan, Sardar Alam and Moeenullah also hoarded. Accused/appellant Shahidullah boarded at Bizen Khel. At about 8-30 p.m. When the Datsun reached a hamlet, the complainant was asked to stop. Thereafter, accused-appellant Shahidullah and Asmatullah proceeded to the hamlet to bring the lady. The lady, however, allegedly refused to accompany them at that late hour. Accused Sardar Alam then asked the complainant to entrust the key of the Datsun to him, but he declined. The complainant was thereafter taken to Lundiwa where the Datsun was stopped on the bank of a Nalla. The accused then forcibly took the Datsun from the complainant and turned it towards the metalled road where he (the complainant) and his cleaner P.W. Syed Usman were thrown out of the Datsun. It was about 10-15 p.m. Both the complainant and the driver spent the night at Landiwa. On the following morning they went to P.S. Domel and from there the complainant informed P.W. Haji Abdul Qayum, the owner of the Datsun, about the occurrence. P.W. Haji Abdul Qayum reached the police station and at his behest, the complainant lodged the report at P.S. Naurang to the above effect recorded by A.S.I. Asmatulah (P.W.5) in the daily diary (Exh.P.W.5/1). This report was entrusted to IHC Usman Ghani for investigation, It transpired that the occurrence had taken place within the jurisdiction of P.S. Domel. The relevant documents and the report were, therefore, sent to that police station for registration of the case.
6. Jan Muhammad; S.H.O. P.S. Domel (P.W.13) accordingly recorded F.I.R. Exh.P.A. And investigated the case. He arrested accused Moeenullah on 29-7-1991. Accused Shahidullah and Asmatullah were in judicial lock up at Karak. He formally arrested them and got them transferred to his police station Domel. He recorded statements of P.Ws. Usman Hayat, Ibrahim, Mir Shah Jehan under section 161, Cr.P.C. And thereafter produced them before the Magistrate who recorded their statements under section 164, Cr.P.C. On 10-8-1991 Mir Shah Jehan produced a Datsun of red colour bearing registration No,5282-BUB. The Investigating Officer took the same into possession per recovery memo. Exh.PW10/10. On 11-8-1991, he produced accused Shahidullah and Asmatullah before the Illaqa Magistrate for recording their confession. Shahidullah appellant made the confession while Asmatullah declined to make. Lastly, accused Aslam was arrested on 2-9-1991. On completion of the investigation, the accused were challaned to the Special Court for Speedy Trials, D.I. Khan to stand their trial.
7. ' The prosecution mainly relied on the ocular account furnished by Najibullah (P.W.1) and his cleaner Syed Usman (P.W.2). It further relied on the circumstantial evidence furnished by Mir Shah Jehan (P.W.3) and Haji Ibrahim (P.W.4) as well as the confessional statement (Exh.P.W.11/1) of accused/appellant Shahidullah recorded by Mr. Rashid Ahmad Khan Qasuria, M.I.C. Bannu (P.W.11).
8. ' We have heard the learned counsel for the parties and perused the record of the case.
9. ' At the trial, appellant Shahidullah denied the charge against him. He retracted the confession by saying that he had not made confession which the Magistrate might have recorded on the dictation of the police. While being examined by the trial Court under section 342, Cr.P.C., the appellant Shahidullah in an answer to the Court question made the following statement:-- "After I was arrested, I was taken to P.S. Domel, where the police suggested to me that I should accompany Ibrahim Malik, who would stand surety for me if I agree to his demands, but I refused.
10. At Digarwela it was the routine of the S.H.O. To take me out of the judicial lock-up and used to take me to the baithak of Ibrahim where the S.H.O. And Ibrahim used to commit sodomy upon me and they were asking me to agree to become the driver of the said Ibrahim, but I refused. Even I was followed by Ibrahim Khan in the District Jail, Bannu, where he used to see me and pursuade me to accept his employment, whereafter he would get me released on bail. I am innocent and have falsely been charged."
11. ' Now, it is a matter of record that the other accused while on their way to Azim Kalla in the Datsun, appellant Shahidullah was picked up at Bazenkhel. It is not disputed that no other accused was there with him and he was all alone. He is a young boy of about 16/17 years and it has also come on the record that he is a handsome and beautiful boy. On seeing him, the other accused will have forced him to board the Datsun. We consider this a plausible conclusion in the facts and circumstances of the case. Had he the intention to commit the offence, he would have together with the other accused jointly boarded the Datsun. This instance alone speaks against the prosecution that he was accomplice in the crime and had intrigued for that purpose with the other accused.
12. ' In his statement under section 342, Cr.P.C. Before the trial Court, the appellant stated that after his arrest, the S.H.O. Asked him to accede to the demand of Ibrahim who would stand surety for him and that the S.H.O. Was taking him daily at Digarwela to the baithak of the said Ibrahim where both of them used to commit sodomy on him. Not only this, but according to the appellant, he was even followed by Ibrahim Khan in the District Jail, Bannu, where Ibrahim used to see him and persuade him to accept his employment, whereafter he would get him released on bail.
13. Now, the appellant was not defended by any counsel in the trial Court. We consider that in the ends of justice, the trial Court should have inquired into this allegation of the appellant from the jail authorities if P.W. Ibrahim had ever visited the jail to meet the appellant. It may be observed that in law, the trial Court is essentially a Court of inquiry and if something comes on record which warrants verification on rebuttal from external source, the trial Court is not precluded to proceed with it for recording evidence to fill in the vacuum and do justice in the case objectively. We have already observed that the appellant is a young beautiful boy and in view of the facts discussed, his statement would appear to be persuasive, plausible and commend itself.
14. On a consideration of the evidence brought on record, we have come to the conclusion that the role of the accused-appellant in the occurrence is not that attributed to him by the prosecution. In this view, it is clear to us that the confession was extracted from him under coersion and duress or it was copied by the Magistrate from a written paper prepared by the police and the accused was forced to sign the same. In these circumstances, the alleged confession, which is retracted and exculpatory, is not a good piece of evidence to carry conviction.
15. ' There is another feature of the case. The record is silent whether the appellant and the acquitted accused were charged under section 34, P.P.C. No question was put to the appellant whether he in furtherance of common intention with his co-accused committed the offence in the instant case.
16. This would show that there was no such case against the appellant and the acquitted accused. Be that as it may, in the facts and circumstances discussed, we fmd that the prosecution has failed to prove its case against the accused-appellant beyond doubt.
17. ' On the view of the matter that we take accepting this appeal, we set aside the convictions and sentences of Shahidullah appellant and acquit him of the charges levelled against him. He shall be released forthwith if not wanted in any other case.
18. ' Herein above are the full reasons for the short order passed by the Court on 28-10-1991.