1. ' ABDUL HAMEED DOGAR, J.-- The Special Judge (Suppression of Terrorist Activities), Larkana/Sukkur Division at Shikarpur has convicted the appellants under sections 365-A and 149, P.P.C. In Crime No,18 of 1992 of Police Station Chak and sentenced them to suffer R.I. For imprisonment for life and confiscation of their movable and immovable properties. The appellants have been given a benefit of provisions of section 382-B, Cr.P.C. In the computation of their sentence. By this appeal, the appellants have challenged the above conviction and sentence passed against them.
2. ' The brief facts are that S.I.P. Mehar Ali of Police Station Chak lodged F.I.R. At Crime No,18 of 1992 on behalf of the State under section 365-A/149, P.P.C. And 324, Qisas and Diyat Ordinance and 13-D of the Arms Ordinance stating therein that on 25-3-1992 he and his subordinate staff, A.S.I. Amanullah, A.S.I. Anwar Ali, P.C. Allah Ditto, P.C. Inayatullah and P.C. Naseer Ahmed left the police station for patrolling and when reached at Dehar Bridge, they saw a car coming fastly. They followed the car till Katcha Forest area. Two culprits alighted from the car, one was armed with Kalashnikov and was identified as Ghulam Husain Mughal. The other culprit was empty-handed. The accused Ghulam.
3. Husain while firing at complainant party decamped, whereas other empty-handed person was apprehended and who disclosed his name as Nisar and told that he is a taxi driver and co- accused Ghulam Husain and others have used his car in the commission of the abduction of one Ram Chand from village Esso, Aezzo. Appellant Nisar, and his car were brought at police station where the complainant lodged F.I.R.
4. ' As per the case of the prosecution, on 24-3-1992, one Ram Chand and Mushtaque Ahmed were abducted in a car at 10-00 a.m. While going to Basic Health Unit, Esso Aezzo, where Ram Chand was posted as dispenser.
5. ' This fact was disclosed by P.W. Mushtaque Ahmed before Investigating Officer, who recorded his statement. On 1-4-1992, the appellant Nisar was picked by P.W. Mushtaque Ahmed and Muhammad Bacall in an identification test held before Assistant Mukhtiarkar, Lakhi. On 15-5-1992, S.I.P. Mehar Ali (complainant) received spy information that abductee Ram Chand is available in a but in the Forest near protective Bank of River Indus. He, along with police officials, immediately raided that place at about 3-30 p.m. And recovered abductee Ram Chand from a Katcha but with its door bolted from outside after an exchange of fires in between them and appellant Minho, co- accused Ghulam Hussain, Azmat Jatoi and Ameer Bux Chandio. Co-accused Ghulam Hussain, Azmat Jatoi and Ameer Bux were said to be armed with Kalashnikovs and appellant Minho with shot gun. Co-accused Ghulam Hussain, Azmat Jatoi and Ameer Bux decamped and only appellant Minho was apprehended. The complainant registered a separate F.I.R. No,23 of 1992 under sections 307, 353 and 34, P.P.C. At the same police station. On 26-5-1992, the appellant Minho confessed his guilt and such confessional statement was recorded by Mukhtiarkar and F.C.M., Lakhi. Thereafter abductee Ram Chand also picked the appellant Minho in an identification test held before the IIIrd Class Magistrate, Lakhi.
6. ' The police produced the charge-sheet before Special Judge (S.T.A.), Larkana, showing the appellants in custody and co-accused Ghulam Hussain, Ameer Bux and Azmat as absconders.
7. ' The case was received by the trial Court by way of transfer from the Court of Special Judge (S.T.A.), Larkana.
8. ' The charge under sections 365-A and 149, P.P.C. Was framed against the appellants Minhon, Nisar alias Ali Gul and co-accused Azmat Patio. They pleaded not guilty.
9. ' The prosecution examined P.W.1 Ram Chand (abductee), P.W.2 Mushtaque Ahmed, P.W.3 Abdul Rahman Siddiqui, Mukhtiarkar and F.C.M. Lakhi, P.W.4 Azizullah Memon, Assistant Mukhtiarkar and IIIrd Class Magistrate, Lakhi, P.W.5 A.S.I. Amanullah, P.W.6 H.C. Allah Warayo, P.W.7 S.H.O. Mehar Ali (Investigating Officer) and P.W.8 F.C. Naseer Ahmed.
10. ' The appellants Minho and Nisar alias Ali Gull and co-accused Azmat patio were examined under section 342, Cr.P.C. By the trial Court wherein they denied to have committed the offence. Appellant Minho pleaded that he was falsely implicated by 'the police because his cousin had filed Constitutional petition before this Court against S.H.O. Rustam and also produced the certified copy of the said Constitutional petition. He also produced duty report, dated 14th May, 1992 in respect of abductee Ram Chand. The appellant Nisar had pleaded that he has been involved in that case, as Chak Police had hired his taxi and on the demand of fare, the police became annoyed with him. Co-accused Azmat patio has stated in his statement under section 342, Cr.P.C.
11. That he is a victim of a private dispute in between Maars and Patois and was involved in this case at the instance of Ghous Bux Mehar. The appellants neither examined themselves on oath in disproof of the charges or allegations made against them, nor produced any witness in defence.
12. ' The trial Court after assessing the evidence, convicted appellants Minhon and Nisar alias Ali Gul, whereas acquitted co-accused Azmat Jatoi by giving him benefit of doubt.
13. ' We have heard the learned counsel Mr. Ghulam Quadir Jatoi for the appellants and Mr. Suleman Habibullah, for the State and have also gone hrough the record of this case. The latter has not supported the impugned judgment and submitted that the prosecution has failed to prove the case against the appellants and the benefit of doubt be extended to them also. Mr. Jatoi contended before us that P.Ws. Ram Chand (abductee) and Musthaque Ahmed have not implicated the appellants with the commission of the offence before the trial Court and were declared hostile. P.W. Mushtaque Ahmed also denied the holding of identification in respect of appellants before Assistant Mukhtiarkar and F.C.M., Lakhi. The learned counsel lastly argued that the only piece of evidence against the appellant Minho is of confessional statement made by him before the Mukhtiarkar and F.C.M., Lakhi on 16th May, 1992. He attacked this judicial confession following points:--
(i) That the learned Magistrate did not observe the legal formalities while recording the confessional statement of appellant Minho, as the appellant was handed over by the learned Magistrate after recording the above confessional statement to the same police which is not only against the basic ingredients of the rules of recording of confession but is also against the rule of natural justice. Learned counsel pointed out that the police, to whom custody was handed over, produced the appellant before the Assistant Mukhtiarkar and IIIrd Class Magistrate, Lakhi, where an identification test was said to have been held by him; and
(ii) That the appellant had retracted the above judicial confession at the earliest possible opportunity, therefore, a retracted confession in absence of any other independent piece of evidence has got no value and one cannot be convicted without its independent corroboration.
14. ' We have gone through the entire evidence on the record of this case.
15. Abductee Ram Chand and P.W. Mushtaque Ahmed have not implicated the appellants on the factum of abduction and identification test during their examination before the trial Court. The confessional statement of appellant Minho, on the face of it, also suffers from inherent violations.
16. The formalities to be observed by a Magistrate, have not been followed by the Magistrate while recording confessional statement. So much so, the voluntary character of confessional statement, as required under section 164(3), Cr.P.C., is missing in this case. It has been noticed that Mukhtiarkar and F.C.M., Lakhi has not taken process of recording the confession seriously and has acted in a mechanical manner without applying his mind to the legal pre-requisite to be observed. Appellant Minho has not been assured by the Magistrate that whether he made confession or not, he will not be given back to custody of same police. There is a specific procedure to be followed while recording the confession:-- "As soon as accused is produced for confession, his handcuffs should be removed and all the Police Officers should be turned out from the Court room. Thereafter, the accused should be informed that he is before a Magistrate and whether he made any statement or not he would not be given back to the police who had produced him before the Court but would be remanded to judicial lock-up. He should then be given sufficient time to ponder over the matter. Thereafter he should be warned that he is not bound to make any statement but if he did so it could be used as evidence against him. Then following questions should be put to him:--
(i) For how long have you been with police?
(ii) Has any pressure been brought to bear upon you to make confession?
(iii) Have you been threatened to make confession?
(iv) Has any inducement been given to you?
(v) Why are you making this confession?
(vi) Have you been maltreated by police?
17. ' After recording the accused's answers to the above questions, if the Magistrate is satisfied that he is making confession voluntarily, he would then put such questions to him, as are given in the printed form and then he should proceed to record his confession in verbatim."
18. ' Admittedly this procedure has not been adopted by the Magistrate while recording the confession in this case. As such no implicit reliance can be placed over it. It is now settled law that retracted confession should not be acted upon and be made the basis for conviction unless it is corroborated in material particulars. In this case also, no corroboration worthy of mention, has been brought by the prosecution in support of the above. At this stage, it may be pertinent to refer on this point 1984 PCr.LJ 611 (d), (e) and (f) and PLD 1987 FSC 43 (f) and (g).
19. ' We are, therefore, of the opinion that the prosecution has miserably failed to prove the case against the appellant and entire evidence lacks the degree ,of cogency. As such we allow this appeal and set aside the conviction and sentence awarded to the appellants by the trial Court and acquit the appellants.
20. ' By a short order, dated 20-7-1995, we allowed this appeal, these are the reasons for the same.