' JAVED IQBAL. J.--The brief resume of the appeal is that on 8th September, 1989 FIR No,115/89 was registered in Saddar Police Station, Sibi under section 302/307/109/34, P.P.C.. According to the report accused Mansoor Ali entered the house of Muhammad Yagoob and by means of Kalashnikov fire killed Muhammad Yaqoob his wife Mst. Zaibunisa and his three daughters namely Mst. Hameeda, Mst. Sharifan, and Mst. Fateh Khatoon. They died at the spot. Sister of Muhammad Yagoob namely Mst. Murad Bibi and informant Jehanzab were injured. As for the motive it was stated that there was a property dispute between deceased Muhammad Yaqoob and father of accused Mansoor Ali. It is significant to state that Muhammad Yagoob had no male issue and the accused persons were legal heirs/collaterals of Muhammad Yaqoob.
That during investigation principal accused Mansoor All recorded his confession under section 164, Cr.P.C. And weapon of offence, i,e, Kalashnikov was also recovered from Mansoor Ali. Accused Mansoor All and Dawar Faiz were charged for the offence of multiple murder under sections 302/34, 307/34. Other were charged with abetment of murder. As for the appellant he was charged with offence under section 212, P.P.C. With the allegation that he had taken Mansoor All accused from the spot on motorcycle and subsequently concealed him in a jungle, provided him with food and shelter and thus facilitating his escape and consequently principal accused absconded to Karachi. Eventually incomplete challan was submitted on 17-4-1990 to the Court of Sessions Judge, Sibi and subsequently the case was transferred to the Special fudge established under Suppression of Terrorist Activities (Special Courts) Act, 1975--hereafter referred to as Act XV of 1975.
3. That on 6-2-1990 charge was framed which is reproduced here under for ready reference: "That you on 8-9-1989 at 12-45 p.m. At Sibi harboured accused Mansoor and concealed him in a jungle near Sibi with the intention of screening him from legal punishment while you were in knowledge that Mansoor has committed the murder of Muhammad Yaqoob, Zaibunisa, Sharifan Begum, Jehanzeb and Murad Bibi with the intention to kill them and thereby committed an offence under section 212, P.P.C. Which is within cognizance of this Court.
' And I hereby direct that you be tried by this Court on the said charge."
4. During trial main case was compromised as a result of which accused persons were acquitted from the charge of murder. However, principal accused Mansoor Ali has been awarded 10 years' RI as Tazir under section 311, P.P.C. Read with section 338-E, P.P.C.. He has also been convicted under section 307, P.P.C. For causing injuries to complainant Jehanzeb and has been sentenced to 7 years' RI with fine of Rs,5,000 with both the sentences to run concurrently. The appellant was convicted under section 212, P.P.C. And 3 years' RI awarded and a fine of Rs,5,000 and 6 months' SI in case of default of payment of fine.
5. The learned counsel for convicted appellant while assailing the impugned judgment mainly contended that sufficient incriminating material was lacking to connect the appellant with commission of alleged offences and nothing adverse could be brought on record to establish'the charge. It is also contended that on the basis of adduced evidence no offence under section 212, P.P.C. Is made out hence the awarded conviction is not sustainable. It is also argued with vehemence that section 212, P.P.C. Being not a scheduled offence in terms of Act XV of 1975, could not have been tried by the learned Special Judge due to want of jurisdiction.
6. The learned Additional Advocate-General have controverted the arguments advanced by the learned counsel for appellant and argued that the prosecution has been able to prove the case. He has mainly relied upon the confessional statement of the principal accused Mansoor Ali, who had allegedly implicated the appellant up to the extent of taking him on motorcycle to a jungle for providing shelter. The learned Additional Advocate-General in order to substantiate his contentions as referred to above has drawn our attention to the deposition of Gul Rehman (P.W.9), Munir Ahmed (P.W.11) and Pir Muhammad (P.W.12).
7. We have thoroughly perused the entire record and carefully examined the evidence adduced against the appellant. Gul Rehman (P.W.9) has stated without any ambiguity that appellant took Mansoor Ali the main accused in a Tanga while Abdul Razzaq (P.W.10) has given absolutely a different version and stated that appellant Mewa Khan took Mansoor Ali on a motorcycle. This glaring contradiction in-between the depositions of two eye-witnesses should not be escaped unnoticed. Apart from it, Abdul Razaq (P.W.10) pointed out during cross-examination that "the accused (appellant) came on a motorcycle there at a Chowk. This accused came over there by chance, and stopped himself'. The said portion makes it clear that arrival of Mewa Khan the appellant was just a chance, who was told about a fight of principal accused Mansoor with Kulohees by Abdul Razaq (P.W.10) who subsequently while answering one of the questions during cross-examination stated that they had falsely told about the abovementioned fight. The statement of Munir Ahmed (P.W.11) does not render any assistance to the case of prosecution being hearsay who himself had never seen Mewa Khan taking Mansoor on the motorcycle. The above discussed prosecution evidence is not confidence inspiring and being contradictory cannot be relied upon. Hence we hold that the prosecution has failed in its duty to prove the case against the convict appellant by producing unimpeachable evidence to connect him with the commission of the alleged offence.
8. Apart from abovementioned discussion we have also examined whether the offence of 'Harbouring' can be made out without having the knowledge of committed crime and criminal intention. It needs hardly any explanation that to constitute a crime the act must be accompanied by a criminal intent or by such negligence or in difference of duty or to consequences as is regarded by the law as equivalent to criminal intent. We are conscious of the fact that intention is not capable of positive proof and it can only be implied from overt act and no hard and fast rules can be formulated to know the intention which must always be gathered from the circumstances of the case, and the matter which is primarily to be considered is the consequences which flow from an act because a man is usually presumed to intend the consequences of his own act. No overt act has been proved to show criminal intent and without the proof of `wens rea' award of conviction cannot be considered as lawful. One of the essential prerequisites of section 212, P.P.C. Is that the concealment must be with the intention of screening an offender from legal punishment. It is necessary that the accused at the time of commission of offence, should have notice and knowledge either express or implied that the offender had committed a crime. It is, therefore, absolutely necessary that the prosecution must establish that the harbouring was done intentionally and with the knowledge or belief that the person harboured had committed the offence. It is not enough that he suspects him to be an offender. It is necessary to show that he had reason for believing him to be so. An act would be an offence only when it is done with particular knowledge or intention, the charge must fail if the evidence produced by the prosecution is meagre to suggest a reasonable inference as to such knowledge or intention. The fact that a person is an offender fleeing from justice does not make a man amenable to this section for giving succour and shelter. It is his criminal or evil intention to screen him from punishment that converts his act into offence. The words "Whom he knows or has reason to believe to be the offender" must be understood in its true context i,e, there must be some facts brought to his knowledge from which he may infer that the person sheltered is offender. It can therefore safely be inferred that no harbouring or concealment is punishable unless there was an offence and the accused knew that the person harboured is the offender. It is, therefore, absolutely essential that the prosecution must establish that harbouring was done with the knowledge or belief that the person harboured, had committed the offence. The prosecution has been failed to bring an iota of evidence on record to prove either the knowledge or criminal intent.
9. We have also noticed that the statement of accused Mewa Khan recorded under section 342, Cr.P.C. Is indicative that the confessional statement of Mansoor Ali was never put to him as an incriminating piece and as such a serious prejudice has been caused which is not an omission, but serious irregularity not curable under section 537, Cr.P.C. As it has occasioned a failure of justice. It is well-settled by now that unless an accused is given an opportunity to explain the circumstances appearing against him the same cannot be used against him. The object being two-fold i,e, to afford the accused a fair and proper opportunity of explaining the circumstances which appearing against him, he must be questioned separately about each material circumstance intended to be used against him and second is to enable the Court to ascertain from the accused what explanation, he has to give regarding the material circumstances disclosed in the prosecution evidence and he proposes to meet the same. The mandatory requirements of the provisions as contemplated under section 342, Cr.P.C. Have not been complied with thereby causing a serious prejudice to convict/appellant. We are of the opinion that even a slightest evidence of a reasonable probability of prejudice would swing the balance in favour of the accused. In this regard reliance can be placed upon the following authorities; ' 1969 SCMR 777, Din Muhammad v. Crown.
' PLD 1956 SC (Pak.) 300, Munawar Ahmed + (D.B). PLD 1952 Lah. 374, Shammun v. Crown.
10. We have not been able to persuade ourselves to agree with the contention of learned Additional Advocate-General that the confessional statement of accused Mansoor should also be considered against appellant being co-accused because a separate challan under section 212, P.P.C. Was submitted against him for entirely a different offence and, more so, even for the sake of arguments if appellant is considered as co-accused even then the confession of a co-accused is not evidence as defined under clause (c) of section 2 of the Qanun-e-Shahadat, 1984. There is no cavil to the proposition that the confession of co-accused cannot be the foundation of the conviction of another and that it could only be taken into consideration to strengthen other evidence which might be on record and further that such a confession cannot be used to fill the gap in the prosecution evidence, which might fall short of connecting the accused with crime. The persuasive efficacy of such confessional statement would be further weakened by the circumstances if the maker has himself resiled from it. In this regard, we are fortified by the dictum laid down in the following authorities: PLD 1949 PC 90 (96). PLD 1958 SC (Pak.) 317.
PLD 1956 SC (Ind.) 186 (189).
PLD 1976 SC 404, PLD.1960 SC (Pak.) 386(?), PLD 1960 SC 31. PLD 1972 Lah.
563.
In pursuance of the above discussion the conviction and sentence of the appellant cannot be maintained and giving him benefit of doubt, the appellant is acquitted of the charge who shall be released forthwith, if not required in any other case.