Shakil Ahmad 27/28 son of Miran Bakhsh, resident of Gari Khana, and Muhammad Shafiq son of Faqir Hussain, resident of Gut Bahar Colony, Peshawar City were tried by the learned Additional Sessions Judge, Nowshera for the offence of `Haraabah' under section 17(3) of Offences Against Property (Enforcement of Hudood) Ordinance (VI of 1979) read with section 412, P.P.C. Muhammad Shafiq having died during the trial the case against him stood abated, while Shakil Ahmad was convicted under section 392 read with section 412, P.P.C. By judgment, dated 15-2-1992 and sentenced to five years' rigorous imprisonment and a fine of Rs.5,000 on each score or in default to undergo further simple imprisonment for three months each. Both the substantive sentences of imprisonment were directed to run concurrently. The convict was also allowed the benefit of section 382-B, Cr.P.C. The appeal of the convict is before me.
2. The prosecution case briefly stated is that on 5-3-1989 at 14-00 hours Muhammad Askar complainant-driver's Toyota Corolla Taxi Car No.RIM/7977 Model 1975 was jointly hired by Shakil Ahmad and Muhammad Shafique from Taxi Stand, Hasan Abdal for Jehangira at Rs.250. He took them to their destination but then both 'of them asked him to take them a further and promised to pay him some additional fair. He covered some distance after which he stopped the car at their bidding. One of the passengers alighted from the. Car and went out. After a short while he returned and informed him that the person whom they wanted to see had gone, to Nowshera and asked the driver to take them to Nowshera but he refused to go ahead. Both the passengers then directed him to take them back to Hassan Abdal. Upon this he started towards Hassan Abdal. When they reached a place a little short of Jehangira, the occupant of the rear seat at pistol point asked his companion to take over the steering. Then they took him towards Nowshera and threw him at a point off the G.T. Road after- depriving him of Rs.45 and his National Identity Card. The complainant is further stated to have taken a lift from a motor-cyclist and reached the G.T. Road. A car driver gave him lift and left him near Additional Police Lines. Nowshera, where his report 'Exh.P.A./1 was taken down at about 15-45 hours by Mir Asghar A.S.I. Then posted to Police Station, Nowshera Kalan.
On the basis of this Murasila, F.I.R. Exh P.A. Was drawn up al Police Station Akora Khattak the same evening at 22-15 hours.
3. Mir Asghar A.S.I. (P.W.1) then informed on the wireless set of the Additional Police Lines all the Mobile Units and Check Posts of Peshawar District about the occurrence alongwith the particulars etc. Of the snatched vehicle and the identity of the culprits. It is alleged that Aurangzeb, the then Head Constable attached to Police Station Dabgari while on mobile duty, received the wireless message and intercepted the car near Metro Cinema, Peshawar. It was being driven by Shafique,, accused while Shakil accused appellant was occupying its front seat. In consequence the two accused including the appellant were arrested and Car No.RIM/7977 P.1 was taken into custody.
Besides. He recovered loaded pistol. P.2 from frc5nt seat of the car and so was brief case P.3 of brown colour containing two pairs of clothes P.4, two drugs prescriptions P.5 in the name of Shafique accused and the documents of the said vehicle P.10 to P.18, which were secured vide recovery memo. Exh.P.C/1. The personal search of the appellant by the Head Constable aforesaid led to recovery of some small cash amount. In the meantime according to Aurangzeb (P.W.2)
Sohbat Shah S.H.O. (P.W.4) Akora Khattak alongwith the Police party arrived at the said spot. He handed over the accused and the recoveries to them. Sohbat Shah Khan S.H.O. (P.W.4), on his part apart from taking custody of the car and recoveries as aforesaid, prepared the site plan Exh. P.B.
The two accused, namely, Shakeel Ahmad and Muhammad Shafiq were produced by him to Muhammad Anwar Khan, a Magistrate of the First Class, Peshawar, (P.W.7) on 12-3-1989 who recorded their confessional statements respectively Exh. P.E. And Exh. P.F.
4. The prosecution, in order to bring home guilt to the accused, had placed reliance on the ocular testimony of Muhammad Askar driver (P.W.3), Mir Asghar A.S.I. (P.W.1), Aurangzeb Head Constable (P.W.2), the confessional statements Exh. P.E. And Exh. P.F. And arrest of the accused wish the snatched car P.1 and pistol P.2 on G.T. Road near Metro Cinema Peshawar.
5. At the trial, while denying the prosecution case against him, Shakd Ahmad appellant explained his stand as under: ---I have not been arrested by the police alongwith any motor car. I was taken,, by the police from my house situated in Gari Khana Peshawar to P.S. West Cantt. Peshawar. I was kept in custody,, by the police for about one month. I was kept in this case as well as in other cases. During this period I used to be tortured by the police. I was shown to the complainant in the P.S. Who told the police that I am not the culprit. The complainant has also been examined on oath in Court where he also not charged me in his statement before the Court. The police has not recovered any arm or any other article from my possession. Due to torture, my confessional statement was recorded. I have not committed any-offence and I am totally innocent."
6. In defence he produced Muhammad Afzal (D.W.1) who testified to the arrest on. 5-3-1989 of the appellant,, from his house.
7. Disbelieving the defence version, trial Court came to the conclusion that prosecution case was satisfactorily proved against the appellant through ocular evidence of Aurangzeb (P.W.2) and other P.Ws.; that he accompanied by his co-accused was apprehended alongwith `the stolen car and pistol' soon after the occurrence in consequence of the information of the occurrence conveyed on wireless apparatus coupled with his inculcator confessional statement Exh. P.E.
8. Criticising the finding Mr. Attaullah Khan, learned counsel for appellant, contended that crime has been foisted on the appellant and the so-- called arrest of the accused, therefore, the police witnesses had stage-managed their presence and the manner of the arrest of the appellant and his deceased co-accused. In this context he pointed out that both the accused were not known to Muhammad Askar complainant-driver (P.W.3) and, therefore, he had charged them by their facial features and wearing-apparel still no identification parade was held notwithstanding their arrest within hours of the occurrence. It was next argued that the report was also lodged in dubious circumstances in that even according to Muhammad Askar (P.W.3) from Police Lines he went to Nowshera Cana. From where he was taken by the D.S.P., Peshawar where the vehicle was already recovered and that `on his return from Peshawar report was lodged' when according to the learned counsel it was about 11 p.m. The learned counsel then referred to the contradiction between Aurangzeb Head Constable (P.W.2) and Sohbat Khan S.H.O. (P.W.4) on the point of interception of the car and the arrest of the accused and that between Aurangzeb (P.W.3) and F.C. Fazal-e- Subhan (P.W.6) particularly latter's deposition in his cross-examination. The learned counsel had attacked the voluntaries of the retracted judicial confession Exh. P.E. Attributed to the appellant due to delay of 7 days, which was not corroborated by any credible evidence.
9. Mr. Yahya Afridi learned counsel for the State had supported the impugned order of conviction recorded against the appellant and contended that there was neither delay in lodging the report nor the judicial confession Exh. P.E. Made by the appellant was rendered involuntary on the ground of delay. In this context he conceded that the retracted judicial confession although should not be made sole basis of conviction until and unless it is corroborated, by strong evidence but since in the instant case it was corroborated by the strong evidence of the apprehension of the appellant and his deceased co-accused alongwith car furnished by Aurangzeb (P.W.3) and Fazal-e-Subhan (P.W.6), it could be made sole basis of conviction under Article 43 of Oanun-e-Shahadat,-1984.
10. After appraising the evidence on record I tend to agree with the learned counsel for the appellant that not only the report Exh.PA./1 was lodged in dubious circumstance but it was also made after long delay of about 8 hours. In this context, evidence of Muhammad Askar complainant (P.W.4) is that from Additional Police Lines, he went to Police Station Nowshera and from there he was taken by a D.S.P. To Peshawar when he found his taxi car parked at a place and that after his return his report was reduced into Murasila Exh.PA./1. In this state of affairs, the evidence of Muhammad Askar gives complete lie to the-evidence of Mir Asghar (P.W.1) qua recording of report Exh.P.A./1 at 15-45 hours. The ariest of the appellant by Aurangzeb Head Constable (P.W.2) as a result of blockade and then handing over at about 4-30 or 5-00 p.m. To Sohbat Shah S.H.O. (P.W.4) is belied by the testimony of the latter deposing that the accused were handed over to him not on 5-3-1989 but on 12-3-1989. According to him,. The accused were interrogated by a special team constituted `by the higher officers'. The manner of arrest of the accused deposed to by Aurangzeb Head Constable (P.W.2) is in clear contradiction with that furnished by Fazal-e-Subhan F.C. (P.W.6) particularly the preparation of the recovery memos inside C.I.A., Police Post, situated at Swati Phatak' near Peshawar Stadium and delivering the accused to the authorities of the above post.
This being so even the claim of the arrest of the appellant alongwith the snatched car is not at all worthy of credence and concoction thereof is apparent on the face of the record.
11. The appellant was arrested on 5-3-1989 and was handed over to Sohbat Shah Khan, S.H.O.
(P.W.4) on 12-3-1989 when the appellant had remained in the mysterious custody of specially constituted team, in Police Post C.I.A. Swati Phatak, Peshawar in very mysterious circumstances.
Ordinarily, he should have been in the custody of the Police Station, Akora Khattak, within the jurisdiction of which the occurrence had taken place. It would have remained a secret had it not been extracted from Fazal-e-Subhan, in his. Cross---examination, that the accused were delivered to C.I.A. Police Post, S--Ai Phatak. The detention of the appellant and his co-accused right from their arrest, in the C.I.A. Police Post on 5-3-1989 till they had been made over to Sohbat Shah Khan, S.H.O. (P.W.4) and got recorded their confessional statements Exh. P.E. And Exh. P.F. Casts serious doubts on the integrity of investigation.
12. It does not require extra ordinary intelligence to answer the crucial question that after the arrest instead of making them over to the local police of Police Station, Akora Khattak, within the jurisdiction of which the occurrence had taken place, why the accused were taken to Police Post C.I.A. And "had been interrogated by specially constituted team of Police Officials at the direction of high officers" of Police. To my mind this whole exercise amply speaks for involuntariness of the confession.
13. In order to determine whether the confession was voluntary the attending circumstances must be subjected to very close, minute and rigid scrutiny. In judging the probative value of a confession the following conditions were considered to be sine qua non for the voluntaries of confession in the case of Fazalur Rehman v. The State PLD 1960 (W.P.) Pesh 74:
(i) The character and duration of the custody.
(ii) Whether the confessor was placed in a position to seek the advice of his relative or lawyers.
(iii) The nature and quantum of proof which was available against the confessor before he confessed.
(iv) Whether the confession was consistent with the other evidence which was available when confession was made.
14. It was further held in afore noted precedent that in recording of a 'confession circumstances may justify a brief delay but not a long delay, which, if not explained, invariably leads one to infer that all the time was utilized in extracting a confession from the confessor. True that delay per se in recording the confession is not always fatal but if there are circumstances which would113 cast- shadow of doubt on its genuineness then it should be excluded from consideration. In the instant case the star witness of the prosecution, namely, Aurangzeb Head Constable (P.W.8) had categorically stated that the accused were handed over to Sohbat Shah Khan soon after their arrest alongwith their car. Fazal-e-Subhan F.C. (P.W.6), on the other hand, contradicted -him when he deposed that the accused and the car were taken to Police Post C.I.A. Evidence of Sohbat Shah Khan (P.W.4) that the accused were handed over to him on 12-3-1989 for getting their confessional statements recorded had demolished the case of the prosecution qua the voluntaries of the confessions. The prosecution has miserably failed to clarify as to what investigative steps were taken from 5-3-1989 to 12-3-1989. This custody of 7 days in a place other than the police station concerned was apparently unauthorised casting -a thick shadow of doubt over its genuineness as well as voluntariness.1t has, therefore, to be excluded from consideration.
15. The circumstances under which the appellant and his co-accused were arrested alongwith the taxi car have been held to be dubious and, therefore, not worthy of credence. If this category of prosecution case is excluded, then or even otherwise their identification had attained significance, because the accused,, were not known to the complainant and he had rightly not named them in the F.I.R. Still they were not put to any identification parade under the supervision of a Magistrate.
The cat was out of the bag when Muhammad Askar (P.W.3) was asked in his examination-in-chief to identify the second accused which he could not. Identification proceedings are facts which establish the identity of the accused persons and are themselves relevant under section 9 of the Evidence Act corresponding to Article 22 of the Qanun-e---Shahadat, 1984.
16. From the above discussion, I am of the firm opinion that the appellant had not been arrested as alleged with the taxi car alleged,, to have been snatched in this case. I am also clear in my mind that the appellant had not made confession voluntarily. The Investigating Officer has failed to procure any credible evidence to connect the appellant with the offences under section 392 read with section 412, P.P.C. There is no other evidence to bring home the guilt of the appellant. I would accept this appeal, set aside the conviction and sentence of the appellant and acquit him. He shall be set at liberty forthwith if not required in any other case.
17. 1 had accepted this appeal vide my short order and aforesaid are the reasons therefor.