1. MUHAMMAD ROSHAN ESSANI, J.---The appellants Imran alias Jimmi, Bashir alias Bashu and Islam were convicted under section 365-A, P.P.C. Read with section 149, P.P.C. Bashir and Islam were sentenced to death and their entire property was ordered to be forfeited, whereas Imran alias Jimmi was sentenced to suffer imprisonment for life and his entire property was also ordered to be forfeited to the Provincial Government. The appellants were tried by the learned Judge Special Court for Suppression of Terrorist Activities, Larkana and they were convicted and sentenced as stated herein, by judgment, dated 31st January 1993. The appellants have filed above three appeals against their conviction and sentence. Since all the three appeals have arisen out of the same judgment, we propose to dispose them of by this single judgment. We have heard Mr. A.Q. Halepota, Advocate for appellant Islam, Mr. Asif Ali Soomro Advocate for appellant Imran Ali alias Jimmi and Mr. Nooruddin Sarki, Advocate for pauper appellant Bashu. We have also gone through the evidence with the assistance of the learned counsel. Syed Jalil Hashmi the learned Assistant Advocate-General was heard on behalf of State. The brief facts of the prosecution case as disclosed in F.I.R. Are that on 16-3-1992 at about 8-00 p.m. While the complainant Ganshomal and his brother Kanyalal were sitting at their medical store in Warah Town as usual and they were selling drugs, suddenly six persons armed with Kalashnikovs came at the door of medical store. Out of them two persons came inside and declared that they were decoits. They asked Kanyalal to come out otherwise he would be killed. These decoits also took away one customer namely Nazeer Ahmed and another adjoining medical store-keeper namely Dewandas. The complainant raised cries which attracted many persons of the town. The decoits fired in air and said that any one who followed them would be killed. At the time of incident, besides Nazir Ahmed two other customers namely Pathan Chandia and Noor Ahmed who is father of Nazir Ahmed were also present at the medical store of the complainant. They had come to the store to purchase some drugs. The complainant accompanied by these witnesses then went to Qazi Abdul Ghaffar an elder of the two and narrated the incident to him. An effort was made to follow the decoits and to track their footprints but it was without success. After registration of F.I.R. S.I.P. Sardar Shah took up the investigation. After registering F.I.R. He proceeded to the scene of offence alongwith the complainant. He preferred memo. Of Vardat in presence of Mashirs Sirichand and Asandas. The S.I.P. Then recorded statements of witnesses Noor Ahmed Kalhoro, Pathan, Abdul Ghaffar. He also recorded statements of Mashirs. He met Abdul Fatah 'Nek Mard' of Warah Town in connection with investigation. On 5-41992 abductees Kanayalal and Dewandas returned.. The I.O. Recorded their statement on 7-4-1992. Appellant Imran was also arrested on 7-41992 and he was sent for identification by witnesses on 8-4-1992. The witnesses Noor Ahmed, Ghunshomal, Pathan, Kanayalal and Dewandas identified him in the identification parade held under the supervision of P.W. Sikandar Ali, Assistant Mukhtiarkar, Warah. Likewise Bashu who was already in judicial custody was arrested on 13-9-1992 by S.H.O. Muhammad Islam Baloch.
2. He was also put to identification by abovenamed witnesses on 7-10-1992, when an identification parade was held under the supervision of P.W. Imdad Ali, Resident Magistrate, Kambar at Larkana.
3. The P.Ws Dewandas, Nazir Ahmed and Kanyalal correctly' picked appellant Bashu in the said identification test. The appellant Islam was arrested by S.H.O. Muhammad Islam Balouch on 12-10- 1992 vide Mashirnama Exh.19-A from headquarters of law enforcing agency at Qambar. He was also sent for identification by the complainant and witnesses on 19-10-1992, when his identification parade was held under supervision of P.W. Zulfiqar Ali Abbasi, Assistant Mukhtiarkar, Warah. In the said identification parade abductees Dewandas and Kanyalal identified and correctly picked the appellant Islam. The primary evidence against all the three appellants consisted of the testimony of complainant Ganshomal, abductees Kanyalal and Dewandas, customers namely Noor Ahmed and his son abductees Nazir Ahmed. Apart from these witnesses the prosecution examined three Magistrates namely Imdad Ali, Zulfiqar Ali and Sikandar Ali under whose supervision the separate identification test proceedings of the appellants were held as stated hereinabove. The appellant also gave judicial confession on 13-10-1992 before Sikandar Ali, Mukhtiarkar Warah. The said confession which was retracted by the appellant at the trial, is Exh.24-B. It will not be out of place to mention here that appellant Imran was arrested on 7-4-1992. When the charge Exh.2 was framed against him by the trial Court, the other two appellants were not before the Court as they were shown as absconders in the charge-sheet. Upon arrest of Bashu an amended charge Exh.7 was framed by the trial Court, whereas last amended charge Exh.10 containing the names of all the three appellants was framed by the trial Court on 5-11-1992. After the framing of charge Exh.2 on 3-8-1992 the trial, however, proceeded against the appellant Imran only and evidence of abductees Kanyalal and Nazir Ahmed and Mashir of arrest namely Srichand was recorded. The perusal of the evidence of these abductees then recorded shows that they did not support the case of prosecution as regards the identity of their captors. Abductee Kanyalal in his examination-in-chief stated: "I was not put to identification test before any Magistrate. The present accused was not with the decoits at the time of abduction. I had not seen him with decoits during my confinement". Likewise abductee Nazir Ahmed in his examination-in-chief stated: "I was not put to identification test before any Magistrate. Bashu alias Bashir Shabrani had his face open but the remaining culprits had their faces muffled. I cannot say whether the present accused was among culprits who abducted us. I had not seen the present accused with the culprits in the mountain or lake". The Mashir of arrest of appellant Imran namely Srichand also stated that accused Imran was not arrested in his presence and he knew that present accused was already in Police Lock-up Warah. After framing of amended charge Exh.10 on 5-11-1992 against all the three appellants, the trial started de novo. P.W.1 Kanyalal was again examined by trial Court. In this cross-examination this witness stated that he had not identified accused Islam at the time of his abduction as the culprits were with muffled faces. He also stated that accused Islam did not demand ransom from him. He further stated that he had not seen accused Jimmi at the time of his abduction or during his confinement at lake. P.W.2 abductee Dewandas in his evidence in Court stated that he identified only accused Bashu who is present in Court As far appellant Islam he stated that he had not identified accused Islam at the- time of his identification. He stated that Islam did not demand any ransom from him. He further stated that identification was held before Assistant Mukhtiarkar, Warah. Islam was present there but he did not correctly identify him. As regards P.W.3 Ganshomal who is also first informant/complainant in this case, he is brother of abductee Kanyalal. This witness stated in his cross-examination that when he identified accused Islam he was handcuffed and police told him that Islam was one of the culprits responsible for abduction. He further stated that police had shown accused Islam to him before identification test. As regards Imran this witness stated that he had seen Imran before the holding of identification test. To questions put by Court this witness stated that he was deposing without any coercion. He further admitted in answer to a Court question that accused were shown to him in handcuffs before test of identification. P.W.4 Noor Ahmed who is father of abductee Nazir Ahmed in his evidence in Court stated that he had not seen other accused except Imran as they were with muffled faces. He stated that he identified accused Imran who belonged to their village. This witness further stated that he paid ransom of Rs,50,000 (Rupees Fifty Thousand) to one Qasim for release of his son. P.W.5 abductee Nazir Ahmed who was also examined by the trial Court, stated in his cross-examination that three culprits were having muffled faces. This witness admitted that he did not identify Islam at the time of abduction.
4. As regards identification of Islam, abductee Nazir Ahmed stated in his examination-in-chief that when he was called at police station, he saw accused Islam in police custody and they were .Taken to the Office of Assistant Mukhtiarkar, Warah for identification test, where he identified accused Islam as the police told him that Islam was involved in his abduction. As regards appellant Imran abductee Nazir Ahmed stated in his examination-in-chief that accused Imran was present at police station and police told him that he was one of the culprits in his case. He further stated that he knew accused Imran prior to this incident as Imran resident of the same area. The other evidence adduced by the prosecution consisted of the testimony of three Magistrates named above in whose presence the identification test of all the accused was held. They have deposed that the abductees named above and other witnesses identified the accused in the said tests held under their supervision. The last piece of evidence only against appellant Islam is his judicial confession Exh.24-8 which was retracted by him at trial. In this context the prosecution examined P.W.12 Sikandar Ali Mughal who was posted as Mukhtiarkar and First Class Magistrate at Warah. This witness stated that accused Islam was produced before him on 13-104992 at 11 O'clock in the morning, when he was warned that if he made confession, it could be used against him, but the accused Islam stated that he was making confession voluntarily. After recording his confession the accused was remanded to judicial custody. The perusal of cross-examination of this witness showed that there were interpolations relating to the time given to the accused for reflection. This fact was brought to the notice of witness. He admitted that it was a mistake on his part. This witness admitted that first warning given to accused was not written in his own handwriting. He admitted that he did not reduce into writing question put by him to the accused that if he did not give confession, he will not be remanded to police custody. Even the question as to why the accused was making confession was not reduced into writing by this witness. It is admitted so by him in cross-examination. He admitted that he did not write Jail Police on page No,3 of confession. The witness further admitted that he did not enquire from the accused whether his womenfolk were brought at Police Station or not. To the question suggested by the learned defence counsel the witness denied that the accused did not make any confession and that he prepared confession Exh.24-13 at the instance of Investigating Officer. In their statements recorded under section 342, Cr.P.C. All the appellants denied the' prosecution allegations. They stated that they were innocent and that they did not commit this offence. The appellant denied that they abducted and/or detained abductees Kanyalal, Dewandas and Nazir Ahmed. They also denied payment of ransom of Rs,100,000 (Rupees One Lac) from Motomal father of abductee Kanyalal. All the appellants denied that they were picked up by witnesses in identification tests. As regards judicial confession which was retracted by appellant Islam at the stage of trial, he stated that he did not give any confession and that this thumb-mark was obtained under coercion as his womenfolk were called at police station and maltreated. Appellant Islam further stated that he was threatened that if he did not give confession his womenfolk would be made naked and that he would be sent back to the police for maltreatment. In his 342, Cr.P.C.
5. Statement the appellant Islam further stated that no private witness had implicated him in this case. The appellant Imran examined defence witness namely Abdul Majeed who stated that accused Imran was working as waiter at his hotel and that when Kanyalal and Dewandas were abducted accused was at his hotel. This witness further stated that there was dispute over bill of tea with police. Imran was unable to work as he was arrested by police from his house.
6. From what is stated that above, it will be seen that there was evidence of identification against all the appellants besides retracted judicial confession against Islam only. The evidence of abductees Kanyalal, Dewandes and Nazir Ahmed is not worthy of reliance in view of admissions made by them regarding seeing of accused Islam and Imran at police station prior to their identification test and pointing out of these two accused to these abductees that they were the culprits responsible for their abduction. Besides appellant Islam was said to be in handcuffs at the time when he was put to identification test. Since evidence of abductees named above cannot be relied upon in view of defective and inadmissible identification, their evidence alone cannot form the basis of conviction of appellants, Islam and Imran alias Jimmi. So far as confession given by appellant Islam is concerned, it also does not appear to be voluntarily and true. Besides interpolations in the column relating to time given for reflection, to him important questions regarding not handing over of accused to police if he did not give confession were not reduced into writing by the learned Magistrate. Besides the operative part of the confession is so sketchy, and short. It comprises hardly of three or four lines. No mention of demand or receipt of ransom is made therein. Nor there is mention of places where the abductees named above were detained. Voluntary and true confessions make a complete disclosure of all the happenings related to the initial commission of crime and events subsequent thereto. All such details are patently missing in this confession. In the circumstances the confession which is retracted is ruled out of consideration. It cannot form the basis of conviction of Islam. Besides there is no corroboration to this retracted judicial confession.
7. All the abductees have given admissions which are damaging to the prosecution case. As already held by us in earlier part of this judgment that the evidence of abductees is not sufficient for conviction of appellants Islam and Imran in the circumstances of this case. There is evidence of the three learned Magistrates regarding picking out of these three accused by abductees and other witnesses but this evidence cannot form the basis of conviction of the appellant Islam and Imran as all the abductees and the other identifying witnesses have stated that they identified and picked these two appellants at the instance of police, who had shown these accused to them before these identification parades were held.
8. The case of appellant Bashu alias Bashir is, however, distinguishable from the case of the appellants Islam and Imran alias Jimmi. All the three abductees Kanyalal, Dewandas and Nazir Ahmed have fully implicated the appellant Bashu alias Bashir. They have not given any admission in cross-examination from where it could be inferred that the identification of the appellant Bashu alias Bashir was at the instance of police and/or that he was shown to the witnesses before identification test. No enmity has been established by the appellant Bashu alias Bashir with the abductees. In the circumstances the evidence of abductees alone is sufficient for conviction of the appellant Bashu alias Bashir. Although Motomal father of abductee Kanyalal was not examined, but Kanyalal in his evidence stated that when he met his father Motomal he informed him that he had paid Rs,100,000 (Rupees One Lac) as ransom for his release to accused Bashu alias Bashir. In view of the facts and circumstances stated above there is sufficient evidence of abductees against the appellant Bashir alias Bashu to uphold his conviction. Consequently the appeal of Bashir alias Bashu is dismissed. We have given our anxious consideration to the sentence awarded to Bashu. Since Motomal was not examined and none of the abductees stated that Bashu demanded ransom from them. In the circumstances his sentence is converted from death to imprisonment for life. The sentence of forfeiture of property is upheld. The appeals of Islam and Imran alias Jimmi are allowed. They are given benefit of doubt and they are acquitted. Both the appellants Islam and Imran alias Jimmi may be released forthwith if not required in any other case. As regards Bashir alias Bashu his appeal is dismissed with modification in sentence which is reduced from death and forfeiture of property to imprisonment for life and forfeiture of property. The confirmation of death sentence awarded to all, the three appellants is declined. Before we part with this judgment we are surprised over the finding of learned trial Judge who gave alternative sentence of life imprisonment and forfeiture of property to the appellants in case the death sentence awarded to them was not confirmed by this Court. It was not within the powers and domain of the learned trial Judge to do so. It is for the appellate Court to confirm/uphold the sentence awarded to the appellants by the trial Court or to modify or alter or set aside such sentence. The learned trial Judge clearly transgressed his powers by giving alternate sentence of life imprisonment to the appellants. This finding has left bad taste in our mouth. All the above three appeals stand disposed of in terms stated hereinabove.