' Appellant Abdul Shakoor was tried in the Court of Sessions Judge, Khuzdar and vide its judgment, dated 22-5-2000, the learned Sessions Judge, Khuzdar had found him guilty of the offence under section 457, P.P.C. He was convicted and sentenced to suffer R.I. For 5 years and pay fine of Rs,15,000. In case of default in payment of the amount of fine he was ordered to further suffer S.I. For 6 months. Benefit of section 382-B, Cr.P.C. Was extended to him.
2. The appellant Abdul Shakoor was tried alongwith co-accused Fazal Muhammad, Muhammad Azam and Ghulam Mustafa, but the above named co-accused were acquitted for lack of evidence against them, while Abdul Shakoor alone was convicted.
3. Abdul Shakoor has challenged the judgment and sentences passed against him by the present appeal which was filed through Superintendent, Central Jail, Khuzdar. The appellant being a pauper accused was provided services of a counsel at State expenses.
4. On 25-1-2000 the appeal was heard in details. The record was scrutinized and by a short order, the appeal was allowed. The conviction and sentence of the appellant were set aside.
5. The detailed reasons for the said short order are being recorded now.
6. The relevant facts in short are that on 10-6-1999 Rasool Bakhsh Nathwani of Baghbana Tehsil Khuzdar lodged the report with NaibTehsildar, Baghbana. He stated in his report that early in the morning he and the womenfolk of his house noticed a breech in the wall of their house while the doors of the house were closed. The articles lying inside the room comprising a suit-case, and a box were found broken and lying open, and their contents scattered. A cash sum of Rs,50,000, golden ear rings, two finger rings, a locket, a pair of "Jumako" and the ladies clothes etc., were missing. The complainant Rasool Bakhsh in the F.I.R. Further disclosed that since long he was bearing grudge against the accused namely Fazal Muhammad, Muhammad Azam, Ghulam Mustafa, Abdul Shakoor and Muhammad Ishaq, therefore, he suspected them that they had put him under loss. Therefore, he requested the police that the investigation of the theft be made against them, as the suspects.
7. Accused Abdul Shakoor was challaned alongwith co-accused Fazal Muhammad, Muhammad Azam and Ghulam Mustafa. However, in the column No,2 of the challan name of Muhammad Ishaq had been mentioned, as having been discharged by the police under section 169, Cr.P.C. For want of evidence. The only evidence against accused Abdul Shakoor found during investigation was nothing but the fact that he had made a judicial confession on 11-10-1999, while there was no proof of any other kind, against any of A the accused and consequently, all the co-accused were acquitted by the trial Court, while Abdul Shakoor alone was convicted on the basis of judicial confession.
8. The learned Sessions Judge, Khuzdar had framed the charge for the offence punishable under sections 457 read with 34, P.P.C. And of commission of theft against all the accused but they all pleaded "not guilty", therefore, the trial was held.
9. During the trial the prosecution examined witness Rasool Bakhsh as P.W.1, who stated in Court mainly what he had described in his F.I.R. He added in his deposition certain other properties said to have also been stolen. He further disclosed in the Court that when the police visited his house a plaus, a knife and iron rod were taken over by the police as case property. Without any relevance, the P.W.1 stated that he identified the accused persons present in Court, and stated that he identified them to be those accused who had committed the theft in his house although neither he nor any other witness claimed to be present at the time of the incident. This part of the evidence was not admissible in evidence and had no relevance, therefore, could not be considered as incriminating against the accused.
10. In cross-examination he admitted that in his F.I.R. He had only shown suspicion against the accused persons, and given their names to police as there was previous grudge on his part against them.
11. P.W.2 examined by the prosecution was Noor Muhammad who stated that in his presence police had prepared memo. Of taking into possession of the iron rod, knife and plaus, three brief-cases, a white packet, a red packet and some other articles. He could not in any manner connect the said property with accused persons or with the commission of the theft by them.
12. P.W.3 was Abdul Rashid, Naib-Tehsildar who had recorded the F.I.R. Of Rasool Bakhsh and had visited the place of occurrence and recovered the articles lying there. He also in his statement before the trial Court did not connect the accused persons with the commission of the theft of Rasool Bakhsh.
13. P.W.4 was Muhammad Umar, Naib-Tehsildar. He stated that on 6-10-1999 he had arrested accused Abdul Shakoor. He further stated that he produced him before the Judicial Magistrate, Khuzdar where his confession was recorded. In cross-examination he denied the suggestion that accused Abdul Shakoor was produced before him by the father of Abdul Shakoor because his father had grievance against Abdul Shakoor that he used to annoy his father. He admitted in cross-examination that Abdul Shakoor was arrested in some other case and he further admitted that no property alleged to have been stolen from the house of Rasool Bakhsh was ever recovered from the possession of accused Abdul Shakoor. He admitted that in fact there was no other evidence against Abdul Shakoor.
14. The last witness No,5 was Ghulam Azam, the Judicial Magistrate, Khuzdar who stated that on 11- 10-1999 Abdul Shakoor was produced before him by the Naib-Tehsildar, Baghbana for recording his confession. The confessional statement was recorded by him and produced in Court as Exh.P.5/C. In cross-examination he stated that he did not remember the name of Tehsildar who had produced accused Abdul Shakoor for recording of the confession before him. He admitted the fact that he had not examined the body of the accused for the purpose of finding out marks of maltreatment on his person. Although he admitted in answer to another question that the accused had stated before him that he was given slaps by police on the first day of his arrest. However, from his entire evidence as well as the confessional document it did not appear that the learned Magistrate had himself tried to ascertain whether the accused had been maltreated or tortured by police, although the accused had claimed partial maltreatment in shape of slaps by the police.
Besides, neither it was ascertained by the Magistrate nor shown in the confessional statement, the actual time and date of arrest of accused by police, and where he was confined for 5/6 days before the alleged confessional statement was recorded.
15. In his statement under section 342, Cr.P.C. The accused denied all the allegations and denied that the judicial confession was voluntarily given. No question was put to him whether the confessional statement was true, or extracted under pressure. Similarly the remaining co-accused in their statements wider section 342, Cr.P.C. Had denied all the allegations of the prosecution.
16. Neither the accused Abdul Shakoor opted to examine himself under section 340(2), Cr.P.C. On oath nor he produced any witness in defence.
17. The learned Sessions Judge, Khuzdar on the basis of the above described evidence convicted the appellant and sentenced him as above.
18. I have heard the learned counsel for the appellant and the learned counsel for State. Both the learned counsel did not support the judgment of the trial Court on the ground that the retracted confession given by Abdul Shakoor was not corroborated or supported by any other evidence. It was further contended that the accused Abdul Shakoor had been in police custody for the period of 5 to 6 days before the recording of his alleged confession, and there was allegation of torture by police before his production before Magistrate, by the counsel during the cross-examination of the witnesses.
19. The case of the accused in defence was that he was severaly maltreated by the police and the confession had been extracted from him, and that it was neither true nor voluntary. Besides, the learned trial Judge in his judgment while relying on the retracted judicial confession of Abdul Shakoor, had sought support from the case of Sheryn Zaman etc. v. The State 1989 PCr.LJ 1526 and the case of Wazir Khan v. The State 1989 SCMR page 446. After going through the case of Sheryn Zaman, I find that the learned trial Judge had perhaps not gone through the reported judgment.
' The said retracted confession was held to be true and voluntary and in paragraph No,21 of the said judgment it was observed that the confession believed by the trial Court was corroborated by recoveries. Apart from that, the facts of the reported case suggested that the principle that the retracted confession must be relied on irrespective whether it is corroborated or supported by other circumstances of the case or not, was not accepted in the reported case. Therefore, the circumstances under which the said retracted confession was accepted were considered in the reported case while the circumstances of the present case are to be considered for accepting or rejecting the retracted confession. The general principle that every criminal case has different circumstances and facts are, accepted or rejected on the basis of such circumstances, varies and in each case, equally applying in the present case also. For the same reason the case of Wazir Khan v. The State cannot be made basis for accepting the retracted confession in the present case. For the above reason with profound respects to the views of the learned Judges in the reported case I do not find them applicable to be followed in the present case.
20. Significantly no circumstantial evidence of any nature was collected by the Investigation Agency like recovery of any stolen articles nor the presence of the accused at the time of occurrence. The admission of the learned Magistrate that he had not examined the body of the accused to find out if there was any sign of maltreatment or torture on his person suggested that he had taken for granted that the police behaviour towards the arrested accused was in civilized manner, whereas my experience in the judiciary suggests that generally the police uses all under- hand methods against the accused persons. In the present case the Magistrate had recorded that the police had given slaps to the accused. Therefore, it was his duty to find out about the marks of torture or violence on his body. This is stated specifically because the accused was kept in police custody for a period of 5/6 days (The Magistrate did not give the exact number of days for which the accused had remained in police custody before the date of his production for recording for judicial confession although it was the matter of record and the learned Magistrate was expected to examine such record).
For the above reasons I do consider that the judicial confession of the accused was neither voluntary nor true, and it could be result of maltreatment and torture. It being retracted, and not supported by any other circumstances of the case, cannot be safely relied for conviction.
Therefore, under the above circumstances, the judgment of the learned Sessions Judge cannot be sustained and the same was, therefore, set aside by the short order cited above.