' SABIHUDDIN AHMED, J."---This appeal arises from a judgment of the Special Court No,1 (S.T.A.), Hyderabad dated 22-5-1995 convicting the appellant under sections 395, 365-A and 149, P.P.C. And sentenced him to undergo imprisonment for life and confiscation of all his movable and immovable properties.
2. The prosecution case as stated in the F.I.R. Lodged by one Muhammad Akram Sabir (hereinafter mentioned as the abductee) is that the aforesaid abductee who is working for a private firm engaged in import and sale of animal feed and medicines was travelling from Karachi to Hala after an overnight stay in Hyderabad in connection with his professional duties in a Suzuki Jeep provided to him by his employer On 22-4-1990 at about 1-00 p.m. When he reached a forest near Kalyan Bund on the National Highway a light grey-coloured Charade car crossed him "wherein four persons were seated. The occupants of the car signalled him to stop and two persons alighted therefrom, one of whom was armed with Kalashinkov and the other was empty-handed. They directed him to take the back seat and out of fear he complied with the directions, thereafter the empty-handed person took the driving seat and started driving the jeep while the armed one had blind-folded him with a tape and made him wear sun glasses. After driving for about an hour the abductee was brought to an abandoned room where he was kept for 15 days with four persons who used to guard him. Thereafter, he was taken to different places and eventually on 7-6-1990 after being robbed of Rs,1,495 that he possessed was taken to site area in Kotri, blind-folded, dropped on the road at about 10-00 p.m. And told that he was at liberty. In the time he was able to open his eyes, his captors had gone away and he boarded a bus and came to Karachi. But of weakness and fear he stayed home for some time and conveyed a message regarding his jeep having been snatched to his employers. He was directed to lodge an F.I.R. Which was done on 1-7- 1990.
3. It appears that the investigation was commenced thereafter and the appellant was arrested on 6-10-1990 On 6-4-1994 charge was framed as following:-- "That on or about 22-4-1990 at about 1-00 p.m. From Jungal near Kaliyan Bund on National Highway you alongwith absconding co-accused 1. Raza Muhammad,
2. Jani,
3. Sajjan 4. Niaz 5.
Ahmed and Major duly armed with K.Ks. Committed decoity of Jeep No,273-296 and cash of Rs,1,495 from complainant Muhammad Akram Sabir, and thereby committed an offence punishable under section 395, P.P.C. And within the cognizance of this Court.
' I also further charge you that on the same date, time and place, you alongwith above absconding co-accused duly armed with K.Ks formed an unlawful assembly and in prosecution of the common object of that unlawful assembly you abducted complainant Muhammad Akram Sabir for the purpose of getting ransom and thereby committed an offence punishable under section 365-A, P.P.C. Read with section 149, P.P.C. And within the cognizance of this Court.
' And I hereby direct that you be tried by this Court on the abovesaid charges."
4. All the other persons charged alongwith the appellant could not be apprehended, were declared absconders and proceeded against accordingly. It appears from the record that initially cognizance of the offence was taken by the Vth Additional Sessions Judge, Hyderabad who even framed the charge and proceeded to declare the other persons accused with the appellants as absconders after complying with the requirements of law. Nevertheless upon realisation that offences under section 365-A, P.P.C. Were enumerated in the Second Schedule of Suppression of Terrorist Activities (Special Courts) Act the learned Additional Sessions Judge vide order dated 14- 6-1993 recorded that the Special Court having the exclusive jurisdiction to deal with such offences observed that the trial before him might be coram non judice and accordingly directed that the case be sent to the Special Court whereafter fresh charge quoted above was framed. At the trial the prosecution examined the abductee, Police Inspector Chand Muhammad, a Mashir of the arrest of the appellant, A.S.I. Muhammad Sunman, the person who recorded the F.I.R. Muhammad Hayat, a Mashir of the Wardat and A.C.M., Hyderabad Mr. Abdul Qayyum Shaikh before whome the purported confessional statement of the appellant was recorded. The appellant was examined under section 342, Cr.P.C. But did not lead any evidence in defence. The learned trial Court primarily relying upon the evidence of the abductee and the confessional statement found the appellant guilty and sentenced him in the terms mentioned above.
5. Mr. Nandan Kella learned counsel for the appellant has assailed the findings of the trial Court and the conviction of the appellant on the following grounds;--
(i) Cognizance of an offence could only be taken by the Special Court strictly in compliance with the provisions of sections 5 and 5-A of the S.T.A. Act and the Additional Sessions Judge had no jurisdiction to transfer the case to the Special Court. Cognizance not having been taken in accordance with the requirements of the special law, the trial was vitiated and conviction is liable to be set aside.
(ii) That the evidence of the abductee Muhammad Akram Sabir was unreliable and so far contradictions between the contents of the F.I.R. Lodged by him and his deposition in Court no conviction would be based thereon.
(iii) The appellant was not subjected to any identification parade and was identified by the abductee for the first time in Court. The Investigating Officer was also not examined by the prosecution. In the circumstances evidence was not sufficient.To bring home the guilt of the appellant.
(iv) That the confessional statement was recorded in violation of the mandatory requirement of law and was not liable to be taken into consideration.
6. In support of his first contention Mr. Kella pointed out that. Section 5 of the S.T.A. Act provided for a method of taking cognizance which _was substantially different from that stipulated in section 190, Cr.P.C. Under the Code the cognizance was required to be taken by a Magistrate even if the offence was triable by a Court of Session and such Magistrate, after taking the cognizance was required to send the case to the Court of Session for trial. On the other hand in cases exclusively under the S.T.A. Act section 5 requires an officer incharge of a police station to forward a report under section 173, Cr.P.C., after completing investigation, directly to the Special Court. Therefore, according to learned counsel even if the Additional Sessions Judge was of the view that he had no jurisdiction to try the offence he could at best return the report under section 173, Cr.P.C. (challan) for presentation before the Special Court. However, he had no power to transfer or send the case to the Special Court on his own without notice to the appellant, and therefore, the trial stood vitiated.
In support of his contention learned counsel has relied upon a Division Bench judgment of this Court in Ali Akbar and another. v. The State PLD 1995 Kar.
10. We have carefully gone through the aforesaid judgment and are of the view that the principles of law laid down therein do not support Mr. Kella's contention though at first site they may appear to do so. In the aforesaid case the appellant was initially charged with offences under section 302/147/148/149, P.P.C. Before the Sessions Court. Subsequently through an application under section 170 of the Code made at the direction of the Superintendent of Police the charge was sought to be converted into one under section 365-A, P.P.C. It was held that the case could not be converted into one under section 365-A, P.P.C. At the direction of the Superintendent of Police but the Sessions Judge was required to apply his own mind and amend the charge if, on the basis of material produced, he was satisfied that a case under section 365-A, P.P.C. Was made out. It was in this context that the accused was held entitled to be heard before an order was passed. It may be pertinent to reproduce the relevant observations of Abdul Rahim Kazi, J. (as his Lordship then was):-- "We have heard Mr. Abdul Mujeeb Pirzada, the learned counsel for the appellants and learned Assistant Advocate-General for State. At the very outset the learned counsel for the appellants has raised preliminary objection with regard to legality of the trial. He has pointed out that the case was put up before the Sessions Judge who had registered the same as a Sessions case and issued process against absconding accused. According to the learned counsel this shows that the Sessions Judge had taken cognizance in the matter and the case could be treated as pending before his Court. The learned counsel has submitted that the Court of Special Judge is not a Court subordinate to the Court of Sessions Judge and, therefore, the Sessions Judge had no authority to send the case to the Court of Sessions Judge. He has also t .Iced a further objection that in this case the report as required under section 173, Cr.P.C. Was submitted to the Magistrate on 31-7-1991 who then forwarded the same to the Court of Sessions Judge where the Sessions case was registered as under section 302/147/148/149, P.P.C. As disclosed in the said report under section 173, Cr.P.C. And that a subsequent application under section 170, Cr.P.C. Made by the said S.H.O. To the Civil Judge and F.C.M. Was not competent and could not by itself be treated as a report under section 173, Cr.P.C. The learned counsel for the appellants has further argued that since the case was pending before the Sessions Judge, the accused had a right to be heard before the transfer of such case to any other Court. He has placed reliance on the case Muhammad Rafiq and another v.
Additional Chief Secretary, Home PLD 1989 Quetta 45."
' In the instant case, however, no question of amendment of charge arises inasmuch as admittedly the challan was filed in respect of an offence under section 365-A, P.P.C. Obviously, the case was exclusively triable by the Special Court and apparently through a mistake was filed before and proceeded with by a Court which had no jurisdiction. Indeed if some orders were passed by the Additional Sessions Judge causing subsequent prejudice to the appellant it might be possible to urge that the trial was vitiated. However, as pointed out by Mr. Bahadur Ali Baloch no substantive order was passed by the Sessions Court. The moment the mistake was realised the Additional Sessions Judge passed on the case to the Court of competent jurisdiction. It had no option to retain the same on its on docket by the mandate of law itself and as such no question of noncompliance with the principles of natural justice would arise. Mr. Kella is correct to the extent that the Additional Sessions Judge had no power to transfer the case but referring the case to a Court of exclusive jurisdiction cannot be equated with transfer contemplated by section 528, Cr.P.C.
Or section 4 of the S.T.A. Act we would endorse the observation of late Qaiser Ahmed Hamdi, J. In Muhammad Iqbal v. The State 1992 MLD 287.
7. Mr. Kella laid great emphasis on the fact that the F.I.R. In the instant case was recorded after an inordinate delay i,e, more than two months after the alleged incident. It is indeed correct that Courts have been viewing in recording F.I.R. With some suspicion and have been observing that the delay in lodging F.I.R. Casts doubt upon the prosecution case. Nevertheless, current trend of judicial authority seems to show that no hard and fast rule can be laid down and the question whether delay can create the suspicion of false involvement of the accused as to be determined keeping in view of facts and circumstances. The abductee had deposed that he was kept in confinement for about one and half month and was given oath not to pin-point culprits. In the F.I.R. Which has been duly exhibited he said that he stayed home for some days out of weakness and fear and only conveyed the message to his employer regarding the jeep (which beonged to employer) being snatched away. In the circumstances it would be quite reasonable to infer that he was not personally interested in reporting the matter to the Police but did so subsequently at the behest of his employers who might have insured the jeep. No assumption of an attempt to false involve unnamed persons in a penal offence could be drawn I, therefore, find little force in this contention.
8. Mr. Kella then referred to certain contradictions between the F.I.R. And the deposition of the abductee i,e, the P.W. Muhammad Akram Sabir. He pointed out that in the F.I.R. The witness had stated a Charad car wherein four persons were seated had stopped him, two alighted, one of whom was armed and the other was empty-handed who boarded the jeep and ropped him to in an abandoned room where four persons used to guard him. In his evidence he improved his version by deposing that two other persons were also made to sit besides him on the back seat of the jeep. Again learned counsel pointed out that there was no mention of ransom in the F.I.R. And this element was introduced at the trial. Having anxiously considered this aspect of the matter we are not quite convinced that these discrepancies are of such nature which would cast a serious doubt on the veracity of the statement of the witness. Indeed, if he was disposed of to give false evidence he could have even alleged the presence of the appellant on the scene of abduction particularly when there was no eye-witness of the incident. The argument that evidence of this witness is unreliable does not carry much force and is repelled.
9. As to the question that no identification parade was held it may be pointed out that the appellant was arrested on 6-10-1990 and Mashirnama of arrest was produced by P.W.2 Inspector Chand Muhammad of Crime Branch in Hyderabad as Exh.9. The Mashirnama records that the appellant was arrested on the aforesaid date at 2-30 p.m. At railway crossing site, Kotri upon identification by abductee Muhammad Akram Sabir who was accompanied the police party and pointed out that the appellant was also a person who used to keep guard over the abductee. Mr. Kella has referred to certain judgments of superior Courts where identification parade has been considered essentially to bring home the guilt of the accused but has not been able to refer to any precedent where such parade has been held to be necessary when the accused was arrested at the pointation of the witness. He then admitted to attack the veracity of the evidence by contending that the statement in the Mashirnama was not corroborated by any other witness and in his statement under section 342, Cr.P.C. The appellant had stated that he was not arrested from the railway crossing but from his village. It might suffice to observe here that the Inspector Chand Muhammad was not even cross-examined on behalf of the appellant and the statement under section 342, Cr.P.C. Cannot be equated with evidence. The appellant chose not to enter the witness-bux and depose on oath and in the circumstances we do not consider corroboration necessary.
10. Mr. Kella then argued that the confessional statement made by the appellant before A.C.M., Hyderabad was required to be ruled out of consideration. He pointed out that admittedly the appellant was taken into police custody on 6-10-1990 whereas the judicial confession was recorded on 18-10-1990. According to learned counsel such long detention in police custody without proper explanation might itself be sufficient to vitiate the confession. Moreover, he drew out attention to the following utterances of Mr. Abdul Qayyum the then A.C.M., Hyderabad in his cross- examination before the trial Court:-- "It is correct that there is no mention of answer as given by the accused that he was confessed (confessing?) voluntarily ... ......
".. I had not enquired from the accused as to from when he was in custody of police. It is correct that whatever questions have been mentioned in the prescribed pro forma of confessional statement. All the answers of those questions have been given and whatever questions have been put by me to accused verbally, the same were not mentioned by me in the confessional form. I had not enquired from the Police that as to why the accused was produced by the Police so late... ..... . ..I had not mentioned in the prescribed form the questions put by me to the accused that as to whether no compulsion or inducement has been made from any corner to him to record his confessional statement before me. Voluntarily states it is already mentioned in the prescribed form."
12. Nevertheless, before pronouncing upon this aspect of the case we consider appropriate to examine the contents of the confessional statement which, surprisingly, were referred to by neither of. The counsel. It is quite clear from the answers recorded in response to the question contained in the prescribed pro forma that the appellant stated that he was arrested on 6-10-1990 at 2-30 p.m.
And was detained in Police lock-up at Kotri. It is also recorded that he was making statement without any pressure or inducement. Therefore, apart from the question of delay we do not find any substantial force in the objections raised by Mr. Kella. It is indeed true that confessional statement recorded after long detention in police custody are viewed with a great deal suspicion and Courts have found it unsafe to convict persons on the basis of such statements when retracted at the trial, unless corroborated in material particulars. Nevertheless, truth and voluntariness of a confessional statement can never be determined on the basis of a mathematically exact standards. A conclusion has to be drawn keeping in view other evidence on record and surrounding circumstances. In Shariffuddin Pirzada v. Sohbat Khan PLD 1972 SC 363 the Honourable Supreme Court itself found it possible to convict the respondent on the basis of a confession recorded after fifteen of detention in Police custody. Moreover, though it may be unsafe to convict a person on the version of an uncorroborated judicial confession recorded after a prolonged detention in Police custody, it does not follow-that such confessional statement cannot be used as a corroborative evidence. We are, therefore, not inclined to agree with Mr. Kella that this statement must be altogether ruled out of consideration. In the body of the confessional statement the appellant has substantially ascribed to himself the same role which was assigned to him by the abductee, and therefore, it can be treated as substantial corroboration of the other evidence on record.
13. At the same time, however, we cannot uphold the appellant's conviction under section 365-A, P.P.C. And are in fact a little surprised as to why a far more formidable objection to the impugned judgment was not urged by Mr. Kella. The learned trial Court recorded a positive finding in favour of the appellant to the effect that the offence of dacoity and abduction alleged to have been committed by the appellant alongwith the absconding accused was not proved. Nevertheless, it proceeded to convict him by holding that the allegation that the appellant had abetted the offence of robbery and abduction stood proved. In this context the learned trial Court held that the case of the appellant fell under the third category of abettors defined in section 108, P.P.C. i,e, the person who "intentionally abets by any act or illegal omission the doing of that act". It proceeded to record its findings in the following words:- "This accused comes in a third category. As already stated above that this accused intentionally assisted and gave aid to absconding accused in keeping the complainant/abductee wrongfully under confinement for the purpose of ransom and this fact, the accused was well-aware that the complainant was abducted by the said absconding accused, even then he helped them in this wrong doing. He was in a better position to inform about the abduction of complainant to police and other persons but he did not do so, which is sufficient to prove that he was one or one of the abettor. Had the ransom amount could have received by the dacoits, this accused Imdad Hussain, so received by his companions for which he was doing his duty, which was assigned to him by his companions."
14. As is evident from the above findings what could be established from the prosecution evidence was That the appellant assisted the absconding accused in keeping abductee under wrongful confinement for ransom. Such confinement constitutes an independent offence under section 347, P.P.C. What the trial Court completely overlooked was the fact that the offence of robbery and abduction had been completed long before the appellant came on the scene. At best he could be considered an accessory after fact which is quite different from an abettor or accomplice. There was no evidence to the effect that the appellant had lent any assistance in causing the robbery and abduction or had even omitted to do something which could prevent that offence.
15. Moreover, the observations of the learned trial Court to the effect that the appellant was a co- sharer in the amount and the view that he was required to prove that he was not an abettor and he failed to discharge that burden are also unsustainable. Apart from the fact that there was no evidence to the effect that the appellant aided and assisted in the commission of robbery and abduction, in the confessional statement he clearly attempted to exculpate himself so far as this offence was concerned and asserted that he was, as salaried employee not given any share of the ransom. The learned trial Court failed to follow the well-established principle of criminal jurisprudence that confessional statement must be taken as a whole and is to be treated as evidence both for and against the accused, the conviction under section 365-A, P.P.C., therefore, cannot be sustained.
16. We are nevertheless of the view that there is sufficient evidence on record to find the appellant guilty of an offence under section 347, P.P.C. Such offence, however, does not appear to be covered by the Schedule to the Suppression of Terrorist Activities (Special Courts) Act, and, therefore, we anxiously considered the question whether it was possible for us to substitute the conviction and award one under section 347, P.P.C. Indeed under section 423, Cr.P.C. We can exercise all powers that were available to the trial Court and what needs to be seen is whether the trial Court had the jurisdiction to convict the appellant under section 347, P.P.C. Section 4(2) of the Suppression of Terrorist Activities Act reads as under:-- "4. Jurisdiction of Special Court.---(1) Notwithstanding anything contained in the Code, the scheduled offences shall be triable exclusively by a Special Court: ' Provided that this section shall not be construed to require the transfer of a Special Court of any case which may be pending in any Court immediately before the constitution of the Court.
(2) If, in the course of a trial before the Special Court, the Court is of opinion that any of the offences which the accused is alleged to have committed is not a scheduled offence, the Court shall record such opinion and try the accused only for such offence, if any, as is a scheduled offence."
' This provision came up for interpretation before the Honourable Supreme Court in the case of Sher Akram v. Sher Qadir 1994 SCMR 1092 where the Special Court had, inter alia, convicted the accused for an offence under the Arms Act which was not a scheduled offence. The Peshawar High Court took the view that the under aforesaid section 4(2) the Special Court was required to record an opinion to the fact that such offence was not a scheduled offence and not to try the same, therefore, remanded the matter for being tried by a Magistrate. Reversing this finding the Honourable Supreme Court disagreed with the interpretation and held that section 4(2) was in the nature of an exception to section 4(1) conferring exclusive jurisdiction upon the Special Courts to try scheduled offences and stipulated that after recording such opinion the Special Court could proceed with the trial of the unscheduled offence deeming the same to be a scheduled one. It was further held that the omission to record such opinion was only a curable irregularity and reversing the finding of the High Court directed that the appeal against conviction for an unscheduled offence be heard on merits. In view of the above authoritative pronouncement of the Honourable Supreme Court we are of the view that a Special Court could have also, in the circumstances, convicted the appellant for an offence under section 347, .P.P.C. And accordingly we can set aside the conviction and sentence under section 365-A, P.P.C. And convert the same into one under section 347, P.P.C. Consequently, the sentence of life imprisonment with confiscation of property is set aside and replace by one of three years' rigorous imprisonment. The appellant has spent a considerable time in jail and we are of the view that he is also entitled to the benefit of section 382- B, Cr.P.C.
' Above are the reasons of the short order announced on 22-10-1998.