1. ' SAIDUZZAMAN SIDDIQUI, J.---The appellants were tried alongwith Haji Muhammad Rafiq son of Ghulam Nabi, Abdul Shakoor son of Dad Karim and Ali Muhammad son of Wali Muhammad by the Additional Sessions Judge-II, Quetta, under section 17 (4) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, hereinafter to be referred as 'the Ordinance'. All the accused persons in the case were acquitted by the trial Court except accused Peer Muhammad, who was declared as absconder under section 512, Cr.P.C. The complainant Noor Muhammad son of Peer Muhammad in the case filed a revision petition under Article 203-DD of the Constitution of Islamic Republic of Pakistan, 1973 against the acquittal judgment of the Additional Sessions Judge, Quetta, before the Federal Shariat Court. The learned Federal Shariat Court accepted the revision petition and after setting aside the judgment of the trial Court remanded the case for rewriting the judgment on the basis of evidence already on record observing as follows:-- "The main reason discarding the confession of respondent Muhammad Akram is that he was given in custody of the same police. The learned Magistrate in cross-examination has given reasons therefor saying that no other force was available to send the respondent to Jail. In his statement recorded under section 342, Cr.P.C. The respondent had not alleged any maltreatment. On the contrary in his statement recorded under section 340, Cr.P.C. He denied for having given any confession. No allegation of maltreatment was alleged therein also. He denied to have signed the confessional statement. The confessional statement of the respondent was shown to the learned counsel for the respondents showing his signature. However, these facts were not legally assessed by the learned Additional Sessions Judge, and the same need reassessment."
2. ' We have gone through the well-reasoned judgment of the trial Court in the case and find that the learned trial Court refused to rely on the retracted confession is the case on more than one grounds. It was firstly, found by the learned trial Court that the confessions of the accused Muhammad Akram was not in line with the case set up by the prosecution and, therefore, the trial Court refused to rely on the confession of the accused as a reliable piece of evidence to sustain the conviction of the accused in the case. The trial Court pointed out the inconsistency between the confession of accused Muhammad Akram and the prosecution case in these words:- "Without going in the technicality if the alleged confessional statement is examined it show that Barat Achakzai, Rafiq, Baz Muhammad, Muhammad Saddiq and accused Akram went to the place of incident where Pir Muhammad and Ali Muhammad alongwith three other Afghan Refugees came, as such all of them were 10 in number. Whereas the case of prosecution is that the decoits/assailants were 8 in number. Further, presence of Wali Muhammad and Haji Abdul Khair is not shown. The complainant party has alleged the .Enmity against Wali Muhammad and Abdul Khair and the murder is stated to have been committed due to their previous enmity. In the statement Exh.P/C robbing of certain other persons before the arrival of the jeep of deceased is shown, whereas none of the witnesses have stated that any person who was robbed before them was present there, nor any such person has been produced. P.W.1 Saleh Muhammad stated that he reached the place of incident after the jeep of deceased was stopped and the deceased and other persons were offering prayer, whereas the statement Exh.P/C is silent in this regard. Further, in statement Exh.P/C it is alleged that accused stated that when the jeep came from the side of Pishin they fired on it and the bullet hit the front glass of the jeep, whereas the evidence of prosecution is silent in this regard and no such allegation is made by the prosecution. The red colour jeep bearing registration No,ZB, 557 has not been recovered. The statement Exh.P/C in no way confirms the allegations made by prosecution, the same contradicts the statement of the eye-witnesses i,e. The victim of the case who had appeared as P.W.1, P.W. 2 and P.W.4. The statement of P.W.5 Gul Muhammad the tracker is also contradicted who had shown presence of footprints of eight persons on the spot, out of which 4 is stated to have been traced up to the Refugee Camp Surkhab whereas the statement Exh.P/C show that all the 10 of them went to Refugee Camp Surkhab. The statement Exh.P/C allegedly made by accused Akram does not fit in the case of prosecution."
3. The reasons given by the trial Court for discarding the retracted confession of the accused are not only sound but are also in accordance with the accepted rule of criminal jurisprudence that a confessional statement is used only as a corroborative piece of evidence for proving prosecution theory.
4. ' The learned Federal Shariat Court while remanding the case to the trial Court for rewriting the judgment neither referred to the above reasons given by the trial Court for rejecting the confessional statement nor it gave its own reasons for disagreeing with the above conclusion of the trial Court. It is well-settled principle of law that an acquittal judgment is not to be interfered with lightly and due consideration and weight is to be attached to the observations made in the acquittal judgment. This rule is to be followed more strictly if the acquittal judgment is recorded by the trial Court which has the opportunity of examining the witnesses and observing the demeanour of the witnesses in Court. It is also an accepted rule of prudence in criminal cases that the Court before convicting an accused person solely on the basis of his retracted confession must satisfy itself that the confession is voluntary and true and further look for some other independent piece of direct or circumstantial evidence in the case which corroborated the retracted confession of the accused, to ensure safe administration of justice. In the present case, the trial Court not only found that the confessional statement of the accused in the case was involuntarily but it was also observed that the confession of the accused when read alongwith prosecution case, the two accounts could not stand together. We may also observe that the learned Federal Shariat Court while setting aside judgment of the trial Court and remanding the case for rewriting the judgment observed that accused had not alleged any maltreatment by the police before recording of his confessional statement. This observation, we may point out with respect, is based on misreading of the evidence on record. The accused in his statement under section 340 (2), Cr.P.C. On oath stated as follows:-- "In the night I was kept at Hab Police Station and in the morning I was shifted to Quetta Crime Branch. I was kept 3 days standing at Crime Branch. I was not allowed to sleep after 3 days. I was brought to the Court. Thereafter I was kept again for 5/6 days at Police Station Crime Branch. They tortured me. I did not disclose anything because I had no knowledge they brought me to Bashir Raisani. Bashir Raisani asked me to sign on the paper which I refused. I was turned out from the room and I was taken to jail."
5. The above statement of the accused on oath before the trial Court when read with the prosecution evidence wherein it was admitted that the accused was willing to make a confessional statement on 14-12-1987, 15-12-1987 and 16-12-1987 but he was produced before the Magistrate for recording his confessional statement on 17-12-1987, created a serious doubt with regard to the voluntary nature of the confessional statement of the accused. The scope of interference by the appellate Court with an acquittal judgment was examined at some length in the case of Ghulam Sikandar and another v. Mamaraz Khan and another (PLD 1985 SC 11), as follows:-- "However, notwithstanding the diversity of facts and circumstances of each case, amongst others, some of the important and constantly followed principles can be clearly visualised from the cited and other cases-law on the question of setting aside an acquittal by this Court. They are as follows:-
(1) In an appeal against acquittal the Supreme Court would not on principle ordinarily interfere and instead would give due weight and consideration to the findings of Court acquitting the accused.
6. This approach is slightly'different than that in an appeal against conviction when leave is granted only for the re-appraisement of the evidence which then is undertaken so as to see that benefit of every reasonable doubt should be extended to the accused. This difference of approach is mainly conditioned by the fact that the acquittal carries with it the two well-accepted presumptions : One initial, that, till found guilty, the accused is innocent; and Two that again after the trial a Court below confirmed the assumption of innocent.
(2) The acquittal will not carry the second presumption and will also thus lose the first one if on points having conclusive effect on the end result the Court below: (a) disregarded material evidence; (b) misread such evidence; (c) received such evidence illegally.
(3) In either case the well-known principles of re-appraisement of evidence will have to be kept in view when examining the strength of the views expressed by the Court below. They will not be brushed aside lightly on mere assumptions keeping in view that a departure from the normal principle must be necessitated by obligatory observances of some higher principle as noted above and for no other reason.
(4) The Court would not interfere with acquittal merely because on reappraisal of the evidence it comes to the conclusion different from that of the Court acquitting the accused provided both the conclusions are reasonably possible. If, however, the conclusion reached by that Court was such that no reasonable person would conceivably reach the same and was impossible then this Court would interfere in exceptional cases on overwhelming proof resulting in conclusion and irresistible conclusion; and that too with a view only to avoid grave miscarriage of justice and for no other 'purpose. The important test visualised in these cases, in this behalf was that the finding sought to be interfered with, after scrutiny under the foregoing searching light, should be found wholly as artificial, shocking and ridiculous."
7. After going through the judgments of the trial Court and the learned Federal Shariat Court, we are of the view that circumstances justifying interference with the acquittal judgment of the trial Court by the Federal Shariat Court, did not exist in the present case and accordingly, hold that no case for remand to the trial Court for rewriting the judgment was made out. The appeal is, accordingly, allowed and order of the Federal Shariat Court is set aside.