This appeal has been filed by three appellants, namely, Abdul Nabi son of Fateh Muhammad, Khaliq Dad son Muhammad Azam and Muhammad Gul son of Khudai Rahim, against the judgment dated 29-3-1995 of the Sessions Judge, Ad hoc, Quetta, convicting them under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and sentencing each of them to suffer R.I. For five years and ten stripes. Benefit of section 382-B, Cr.P.C. Has been extended to the accused. I have heard Mr. Amanullah Khan, learned counsel for the three appellants and Mr. Yakub Khan Eusufzai, learned Advocate-General, Baluchistan, who has represented the State. With the assistance of the learned counsel, I have gone through the record including the impugned judgment of the Sessions Judge, Ad hoc, Quetta.
2. Complainant in this case is Barkat A.I, Levies Dafadar, Headquarters Taftan (P.W.1). He made a report on 30-4-1993 at 10-30 a.m. At Levies Thana Sub-Tehsil Taftan, District Chaghi, that from reliable sources from Taftan it was revealed that the five persons, whose names given in the F.I.R. As Amir Hamza, Abdul Nabi, Khaliq Dad, Muhammad Gul and Mir Ahmad, belong to a gang of dacoits have been camping for a long time in mountain area of Groke, Sub-Tehsil Taftan, and they robbed passengers who travelled in the area and also fired upon them with weapons and also deprived them from their valuables by force, but according to the said oral report made by Barkat A.I complainant on 24-9-1993 (a day earlier to the report) some passengers who were travelling in that area were robbed and firing was made and the victims deprived of their valuables and that the aforesaid gang was involved in the said crime F.I.R. No.8/93 was registered at 10-30 a.m. On 30- 4-1993 under section 17(3) of the Ordinance on the basis of the said oral report made by P.W.1 Barkat A.I. All the accused were arrested and after completion of investigation they were challaned.
It may be mentioned that according to learned counsel for the appellants, accused Mir Ahmad son of Akhtar Muhammad died during the trial and accused Amir Hamza son of Muhammad Azam is an absconder and this appeal has been filed by the remaining three accused, namely, Abdul Nabi, Khaliq Dad and Muhammad Gul. During the trial 5 witnesses were examined by the prosecution.
Statements of the three appellants were recorded under section 342, Cr.P.C. They also gave evidence on oath under section 340(2), Cr.P.C. Denying the entire prosecution case. They alleged enmity against the levies.
3. P.W.1 Barkat A.I who is the complainant is neither an eye-witness nor gave any evidence as to the incident of looting the passengers by the accused on 29-4-1993. From his evidence, it only follows that he had received reliable information that the accused were responsible for the looting on 29- 4-1993.
P.W.2 Arz Muhammad is not a witness of the incident dated 29-4-1993. According to him, a party was organized to apprehend the accused after information received through complainant Barkat A.I about the incident of 29-4-1993. According to the witness, the accused, who were not seen, were followed but they crossed over to Iran and as such they could not be arrested but from their den various properties stolen by the accused were recovered. Later on according to the witness, the accused were arrested when they can over to Taftan. The evidence of Arz Muhammad is vague and general and does not implicate the appellants with the crime of looting alleged to have been committed on 29-4-1993. No evidence had been brought on record as to where was the den of the accused and whether the properties recovered were the looted properties and had been looted by the accused.
4. P.W.3 Muhammad Zarif states that some empty cartridges were recovered from the mountains of Groke. P.W.4 Abdul Razzaq deposed that on 1-5-1993, from the search of Khaliq Dad, various articles were recovered which he described as stolen articles.
From the evidence of the above witnesses, no case was established against the appellants. No victim was examined from whom any article had been looted by any of the accused. Even number of the vehicle whose passengers were looted on 29-4-1993 has not been given. What was robbed by the culprits on 29-4-1993 had not been mentioned by any of the witnesses in his evidence.
5. Apart from the above witnesses, P.W.5 Tehsildar Khudai Nazar, gave evidence on behalf of the prosecution stating that the three appellants had made confessions before him on 8-5-1993. In his cross-examination he admitted that he did not ask the appellants for how long they had been in custody of the levies. He also admitted that he had not asked the appellants that whether they were giving statements voluntarily. He then stated that the appellants only spoke Balochi but then added that they also spoke Brahvi. The Marasala for recording of the confessions is dated 4-5-1993 but the confessions were recorded on 8-5-1993. Then all the three appellants have given different versions altogether about the incident. In my view, on account of the aforesaid illegalities in the recording of the confessions and contradictions in the three confessions, the said confessions could not be relied upon as legal evidence. Even otherwise, it is conceded by the learned Advocate-General that the said confessions are not corroborated by any other evidence from record. The learned Advocate-General did not support the conviction.
6. I am of the view that on the basis of the said confessions the' appellants were not liable to conviction, the same being inadmissible and also contradictory. Apart from the aforesaid confessions, the evidence of the other four witnesses does not implicate the appellants with the crime in question.
7. As a result, Criminal Appeal No.13-Q of 1995 is allowed, the judgment dated 29-3-1995 of the Sessions Judge, Ad hoc, Quetta, is set aside and the appellants acquitted of the charge. It is directed that the appellants be released forthwith if not required in any other case.