' Fazal-e-Oadir (35) son of Fazal Muhammad resident of Camp No,9 Haripur, Iftikhar (27/28) son of Mushtaq Khan resident of Sherwan and Saeed Ahmed Shah son of Rehmat Shah resident of Havelian, Tehsil and District Abbottabad were placed on trial for the offence of `Haraabah' under section 17 of the Offences Against Property (Enforcement of Hudood) Ordinance (VI of .1979). After conclusion of the trial, the learned Additional Sessions Judge, Abbottabad, found all the three accused guilty of an offence under section 392, P.P.C. And sentenced each one of them to rigorous imprisonment for three years and a fine of ks.1,000 or in default to rigorous imprisonment for one year. The convicts were further ordered to pay under section 544-A, Cr.P.C. Compensation amounting to Rs,4,000 to the owner of Suzuki Pickup No,KH-535 or in default to suffer rigorous imprisonment for one year. The benefit of section 382-B, Cr.P.C. Was, however, extended to the convicts.
2. Alf the three convicts filed three separate appeals. Criminal Appeal No,39 of 1992 preferred by Fazal-e-Oadir convict was held by me vide order dated 10-4-1993 to have abated due to his death* in Afghan War, Criminal Appeals Nos. 40 and 43 of 1992 respectively filed by Saeed Ahmad Shah and Iftikhar, having arisen out of one and the same occurrence and a common judgment, are being disposed of by this single order.
3. Aurangzeb (24) (P.W.5) lodged a report in Police Station, Havelian, which was recorded in the Daily Diary at Serial No,25 dated 8-8-1988. After much dilly-dalling as to in the jurisdiction of which of the Police Station the occurrence had taken place, a case under section 17(3) of the Offences Against Property (Enforcement of Hudood), Ordinance, 1979, was registered vide F.I.R. Exh.PA./1 at Police Station, Havelian. In the report, Aurangzeb (P.W.5) did not charge the accused by name.
According to him he was driving for 5/6 months Suzuki Pick-up No,KH-535 owned by his co-villager Babu Muhammad Farid. According to him a young man wearing dark glasses and bearing an injury near his left eye with dressing thereon, hired on 8-8-1988 at 11-00 a.m. His Pick-up from Qalandar Abad Suzuki Stand for a place near Soban Gali in order to bring some womenfolk in the marriage ceremony of one Salim of Village Mangal. The driver alongwith his cleaner Waris Khan (P.W.6) and the unidentified young man who had hired the Pickup took them to a place below Soban Gali on `Katcha' road leading to village Chamhad. Three persons who had muffled their faces of whom two were armed with pistols and while the third one was holding a dagger in his hand emerged from a groove of trees and stopped them and made them to alight from the vehicle, and snatched from Aurangzeb (P.W.5) a sum of Rs,750 and the ignition keys of the Pick-up at pistol point. Then Aurangzeb and Waris Khan (P.Ws.) were made to sit at the rear alongwith a culprit who was armed with a pistol, the second one took over steering of the Pick-up while the other two occupied with him the front seat and drove it away. After a while they turned back and made them to alight therefrom at the place where they had forcibly taken the vehicle from them.
All the four culprits then drove away the Pick-up towards Abbottabad.
4. Mir Zaman Khan S.H.O. (P.W.7) started investigation in this case on 9-8-1988. On 15-9-1988 he prepared pointation memo. Exh.P.B./1 and Exh.P.B./2 at the instance of Iftikhar appellant, whereby while in handcuffs he is said to have showed the place in Qalandarabad from where he had hired the Pick-up and the place where the convicts who were duly armed had stopped the vehicle aforesaid and had made the driver and the cleaner thereof to sit in the rear and started towards village Chamhad and after dropping them at the place of occurrence had driven the Pick-up towards Abbottabad. Iftikhar convict-appellant was not arrested by the S.H.O. But was formally arrested by Muhammad Rehan A.S.I. (P.W.1) because admittedly he was already in Jail in another charge. Muhammad Khan S.H.O. (P.W.7) however applied for identification of Iftikhar, who was in Jail and arrested Badam, Saeed Ahmed Shah, Fazal-e-Qadir. He then prepared site plan Exh.P.W.7/2. He recorded the statements of P.Ws. Under section 161, Cr.P.C. It is claimed that Iftikhar Alam appellant offered to make confession, therefore, Muhammad Khan S.H.O. (P.W.7) produced him on 20-9-1988 before Mr. Azizullah Khan (P.W.3) who recorded his confessional statement Exh.P.F. Wherein he had not only made clean breast of his guilt but had also testified to the involvement of his co-accused. As the whole case of prosecution hinges on confessional statement Exh.P.F. Attributed to Iftikhar Alam convict it is worthwhile to reproduce its English version which is as under:-- "I got friendly with Fazal-e-Qadir, Afghan Refugee of Camp No,9, Haripur, for the last 2/3 months through Mubarak, my brother-in-law. About two months ago, Fazal-e-Qadir visited the house of my maternal uncle in village Kothiala and took me to Camp No,9, Haripur and beseeched him to help him in committing theft or snatching a vehicle as his creditors were pressing hard for the amount of debt, he owned to them. In this context, Fazal-e-Qadir offered to hire the services of one Afghan Mohajar while I was asked to arrange a Pakistani. Accordingly after spending the night there, I reached Havelian and consulted my friend Saeed Ahmed Shah who agreed to join us. I alongwith Saeed Ahmed Shah visited Afghan Refugee Camp No,9 at Haripur. Fazal-e-Qadir brought Badam Gul another Afghan Refugee along with him. All the four of us reached Company Bagh, near Stadium at Abbottabad and decided that I should go to Mansehra and hire therefrom a Suzuki Pick-up. While on my way to Mansehra I noticed, at Qalandarabad, a Suzuki Pick-up in a very good condition. After alighiting from the Bus I went to the driver of the Suzuki Pick-up and hired him for Saban Gali at Rs,230 on the pretext of a marriage ceremony and started towards that direction.
When we reached Chamhad Road, where Fazal-e-Qadir, Badam Gul and Saeed Ahmed Shah having muffled their faces emerged on the road and stopped the Pick-up and dragged the driver out of it and gave me fists blows and kicks. Fazal-e-Qadir took the ignition key of the vehicle and made all of us sit therein. After covering some distance we dropped the driver and drove towards Haripur where Fazal-e-Qadir parked the vehicle in the courtyard of the clinic of a doctor for the night. We then removed the number plates of the Pick-up and substituted them with the plates bearing the words 'Applied For'. We set out for Peshawar in the morning where we hired a room in a hotel in Qissa Khani Bazar. On the following morning, Fazal-e-Qadir sold the vehicle and paid us Rs,4,000 each. We spent the following night in another hotel in Qissa IChawani Bazar. We returned to Abbottabad by Bus. We along with one Arsala Muhajir went to village (sic) in Khanpur where we snatched some amount from another person where I alongwith Arsal, Fazal-e-Qadir and Badam were arrested while Saeed Ahmed Shah made good his escape."
5. The prosecution case rests on the following categories of evidence:-- (ii) The confessional statement Exh.P.F. Of Iftikhar Alam appellant.
(iii) The Memorandum of identification Exh.P.W.8/1 of Iftikhar Alam appellant conducted in the Central Jail, Haripur under the supervision of Muhammad Anwar Khan Naib-Tehsildar (P.W.9).
(iv) The pointation memos. Exh.P.N./1 and Ddi.P.B./1 prepared at the behest of Iftikhar Alam appellant.
(v) The ocular testimony of Aurangzeb (P. .3) Waris Khan (P." '.4) and Tariq Khan (P.W.4).
6. In his examination under section 342, Cr.P.C. Iftikhar Alam convict denied not only the principal charge of snatching the Suzuki Pick-up and an amount of Rs,750 from Aurangzeb (P.W.5) in furtherance of his common intention with his co-convicts but also maintained that confessional statement Exh.P.F. Was neither voluntary nor true but was the result of coercion and duress. Saeed Ahmed Shah besides denying the main allegation of the prosecution, pleaded alibi saying that on the day of occurrence he was working in the Finance Division, Islamabad, where he was employed as Assistant. He also challenged the voluntariness of confessional statement Exh.P.F. Of Iftikhar, wherein he has also been named, being the result of police torture and inducement. He produced Sayed Mumtaz Hussain Shah Bokhari who testified to the correctness of the plea of alibi specifically pleaded by Saeed Ahmed Shah convict, Fazal-e-Qadir convict had adopted the stance owned by Saeed Ahmed Shah convict.
7. The learned trial Judge placed reliance on all the pieces of evidence categorised in para.5 ante and as stated ealier proceeded to record convictions against the appellants under section 392, P..P.C. And sentenced each one of them to imprisonment, fine and compensation as aforesaid.
8. The convictions and sentences of the appellants were assailed by the learned counsel for the appellants on the following grounds:-
(2) That the confessional statement Exh.P.F. Attributed to Iftikhar Alam besides being involuntary and retracted has not only remained uncorroborated in material particulars by any ocular or circumstantial evidence but was also contradicted by a host of circumstances.
(a) That . The ocular evidence of . Aurangzeb, Waris Khan and Abdur Rashid P.Ws. Was not at all worthy of credence.
(b) That in any case Confessional statement Exh.P.F. Of Iftikhar Alam convict could not be legally relied upon qua Saeed Ahmed Shah and Fazal-e-Qadir appellants.
(c) That at the time of registration of F.I.R. Exh. P.A./1 on 9-8-1988, all the convicts were in custody in District Jail, Haripur in case F.I.R.
' No,155 dated 4-9-1988 of Police Station Khanpur and the link as to how they came to be involved in this case is missing, moreso when they had not been charged in the Daily Diary or in the F.I.R. Exh.
P.A./1.
(d) That the pointation memos. Exh.P.B./1 and Exh.P.B./2 were devoid of any evidentiary value because no incriminating material had been recovered in pursuance of the so-called pointation.
(e) That the so-called identification report Exh.P.W.8/1 conducted under the supervision of Muhammad Anwar Khan (P.W.9) was also of no legal consequence against appellant Saeed Ahmad Shah and Fazal-eQadir in general and Iftikhar Alam appellant in particular inter alia on the ground of admission of Aurangzeb P.W. In his cross-examination to the effect that first of all he identified the accused (Iftikhar) in the lock-up of Police Station Khanpur in the presence of Police (authorities) of Police Station Havailan, then he was taken to Jail by the local police to identify him which he accordingly did.
9. Mr. Farrukh Jawad Panni, learned counsel appearing on behalf of the State, had supported the impugned judgment of the learned trial Court and urged that every item of prosecution evidence was sufficient to bring home the guilt to the appellants.
10. It has to be remembered that the judicial confession Exh.P.F. Which Iftikhar Alam is alleged to have made has since been retracted. It seems to me that the learned Additional Sessions Judge has been impressed by the confession Exh.P.F. Of Iftikhar which he had retracted. I am, however, of the opinion that in order to sustain conviction the confession cannot be relied on because not only Iftikhar Alam appellant but his co-accused were already in jail where they had been lodged in connection with case F.I.R. No,155 dated 4-9-1988. Iftikhar was taken out from Jail vide application dated 14-9-1988 at page 33 while Badam his co-accused was taken out on 18-9-1988, on the basis of application at page 18 of the file. On 15-9-1988, the police custody of Iftikhar was secured and on 20-9-1988 his confession was recorded. He remained in police custody for 7 days which by itself is suggestive of the involuntariness of the confession particularly when he had already been subjected to identification on 12-9-1988 as is evident from the Identification Memo. Exh.P.W.8/1. The principle that longer the police custody of an accused lesser the evidentiary value of his confession is applicable with full force in this case. Besides, the retracted confession Exh.P.F. Is not supported by any evidence on material particulars. In this context the two hotels situate in Qissa Khawani Bazar, Peshawar where the accused had stayed for two consecutive nights were not traced. Again the sale of Suzuki Pick-up at Peshawar has also not been established.
10-A. The confession of the co-accused can be tmed in evidence against his other co-accused under section 30 of the Evidence Act, corresponding to Article 43 of the Qanun-e-Shahadat, 1984 which reads as under:-- "43. When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons is proved--
(a) such confession shall be proof against the person making it; and
(b) the Court may take into consideration such confession as circumstantial evidence against such other person".
11. After the confession relating to the same offence has been proved against confessing accused, all that the Court is entitled to do is to take it into consideration as circumstantial evidence and nothing more. Article 43 of the Qanun-e-Shahadat requires to be considered against co-accused along with the other circumstantial evidence. In the present case, the retracted confession Exh.P.F.
Of Iftikhar Alam appellant has not been held to be true and voluntary. It could not, therefore, be used against confessor. In consequence, it cannot at all be taken into consideration against Fazal- e-Qadir and Saeed Ahmed Shah appellants.
12. The facts narrated in the confession were in the knowledge of the Investigating Officer in advance. It is a salutary principle of law that conviction cannot be recorded in grave offences merely on retracted confessions without independent corroboration. A corroboration should, therefore, be such as to convince a judicial mind. Its evidentiary value should be beyond reasonable doubt. Any corroboration which leaves reasonable doubt in the mind is, therefore, inadequate. In the instant case, as it shall be presently noticed, there is no such independent corroboration of the qualitative value as to convince my mind.
13. It is not at all clear as to how all of sudden it dawned upon Mir Zaman S.H.O. (P.W. 7) that all the accused in case F.I.R. No,155 dated 4-9-1988 Police Station Khanpur were involved in this case as well. Then reference of case F.I.R. No,155 aforesaid in the confessional statement of Iftikhar is very meaningful. It does not reflect adversely upon the integrity of the prosecution case as a whole.
These circumstances, therefore, could be tutored to Iftikhar appellant before he was pursuaded to confess all those facts which were in the knowledge of the prosecution beforehand.
14. The other circumstance on which the prosecution have placed reliance is the pointing of the two places: one at Qalandar Abad Suzuki Stand and another on the road leading to village Chamhad. These two places already find mention in the F.I.R. Exh.P.A/1. In pursuance of pointation of the two places no incriminating material had been recovered, therefore, it has got no relevance qua the guilt of the appellants.
15. Another category of evidence which found favour with the learned trial Judge to convict the appellants in this case, as stated earlier, was the Memo. Of Identification Exh.P.W.8/1 prepared under the supervision of Muhammad Anwar Khan Naib-Tehsildar (P.W.9). The veracity of this identification stands demolished by the admission of Aurangzeb (P.W. 5) which I have already reproduced at item (e) of para. 8 ante, that he was first taken to police lock-up where he was shown Iftikhar Alam appellant and thereafter he was made to identify him in the parade conducted in jail under the supervision of Naib-Tehsildar. Therefore, even the so-called identification of Iftikhar appellant was also an exercise in futility. It is also devoid of any evidentiary value which is to be discarded.
16. The ocular evidence of Tariq Khan claiming to be present at Dilkashi Motors, Haripur and having noticed Suzuki Pick-up No, KH.535 being driven by unknown person wearing dark glasses is not of worthy of credence and is a mere concoction qua the involvement of the appellants in the offence with which they have been charged. The testimony of Aurangzeb apart from reiterating his case which he had set up in Daily Diary F.I.R. Exh.P.A./1 is neither relevant nor plausible to connect the appellants. His claim of having identified Iftikhar appellant has already been held to be far from confidence inspiring.
17. In view of the above discussion, I have come to conclusion that the prosecution has failed to establish its case against the appellants. Their appeals are thus allowed, convictions and sentences are set aside. They shall be released forthwith if not required in any other case.
18. For the reasons to be recorded, a short order to this effect was passed by me on 10th April, 1993.
This judgment provides the reasons for the same.