1. ' ABDUL LATEEF QURESHI, J.--- Appellants were convicted alongwith absconding accused Yousuf Masih by Special Court No,III for Suppression of Terrorist Activities at Karachi in Crime No,362 of 1992, Police Station Soldier Bazar under section 365-A/34, P.P.C. Appellants Muhammad Ali and Anwar Masih were sentenced to death whereas appellant Bhawal Khan alongwith absconding accused Yousuf Masih were sentenced for life imprisonment vide judgment, dated 20-2-1993. Appellant Muhammad Ali filed Criminal Appeal No,85 of 1993, Anwar Masih Criminal Appeal No,91 of 1993 and Bahawal Khan Criminal Appeal No,104 of 1993 all these appeals are disposed of by this common judgment as they relate same impugned judgment.
2. ' Muneer Karam Ali lodged F.I.R. On 5-11-1992 alleging therein on the previous day 8 O'Clock morning while he was getting out of his car at Mehfil Shah Khurasan, he found his previous driver Muhammad Ali armed with pistol/revolver there. On the point of pistol he directed complainant to sit on the back seat of the car silently. In the meanwhile his three other companions also came, two of them sat with the complainant on the back seat, and one on the front seat. Appellant Muhammad Ali took the driver seat. They forcibly took complainant to some unknown house of Korangi and demanded Rs,15 lacs as ransom. The culprits also talked to brother-in-law of complainant'on mobile phone and demanded Rs,15 lacs and in case of failure they threatened to murder complainant. The culprits finally released complainant on his promise of payment of Rs,1,20,000 on demand, and he returned back to his house at 8-30 p.m. On the same day.
3. Complainant lodged the report on next day at 12-30 p.m. On 6-11-1992 complainant received a telephonic call from appellant Muhammad Ali to get ransom money ready for payment. On 7-11- 1992 in presence of police and army personnel complainant received call from kidnappers at 2-30 p.m. Asking him to reach corner of Streets Nos.14 and 18 Defence Phase No,1 at 5-00 p.m. With ransom amount. Rs,1,20,000 were put in an envelope, after noting down currency. The complainant took the money to settled place, where the envelope knowing ransom money were handed over to accused Muhammad Ali and Anwar Masih. Police apprehended both the appellants alongwith the ransom money and prepared such Mashirnama of arrest and recovery. Appellant Bhawal Khan also arrested later on and an identification test was held; in which he was correctly picked up by the complainant. Judicial confession of all the appellants were also recorded.
4. ' Charge as Exh.4 under section 365-A/34, P.P.C. Was framed to which the appellants pleaded not guilty.
5. ' Prosecution examined complainant Muneer Karam Ali. His deposition is Exh.8 and he produced F.I.R. As Exh.9, memo. Regarding scene of offence as Exh.10, memo. Of arrest and recovery of ransom money from appellants Muhammad Ali and Anwar Masih as Exh.12, his 164, Cr.P.C. Statement as Exh.13, memo. Of identification test in respect of appellant Bhawal Khan Exh.14. Eijaz Hashim was examined, his deposition is Exh.22. He is brother-in-law of the complainant and Mashir of arrest of Muhammad Ali and Anwar Masih and also recovery of ransom money from them. Sikandar Ali was examined his deposition is Exh.15. He is 1st Class Magistrate, Karachi (East) who recorded 164, Cr.P.C.
6. Statement of complainant Muneer Karam Ali and Eijaz Hashim, and confession of appellants Muhammad Ali and Anwar Masih and produced the same as Exhs.20 and 21. Muhammad Amjad Thanvi was examined his deposition is Exh.24. He had supervised the identification test of appellant Bhawal Khan. He also recorded judicial confession of appellant Bhawal Khan Exh.25. Sadullah Khan's deposition is Exh.27. He was posted as A.S.-I. In Police Station Soldier Bazar, who arrested appellant Bhawal Khan. He produced memo. Of arrest Exh.28. Manthal Ali is Inspector Police who conducted investigation of the case and submitted challan. Muhammad Anwar who was examined as Court-witness his deposition is Exh.2. He is process-server in respect of non-bailable warrant issued against absconding accused Yousuf Masih.
7. ' 342, Cr.P.C. Statement of appellant Bhawal Khan Exh.33, of appellant Muhammad Ali as Exh.34, and of appellant Anwar Masih as Exh.35 were recorded. They denied allegations against them.
8. Appellant Muhammad Ali further stated that he had deposited Rs,25,000 with the complainant as he was his driver; and he went to take back when'he was apprehended by the police and falsely implicated in the case.
9. ' Appellants did not produce any defence or examined themselves.
10. ' Mr. A.Q. Halepota, learned Advocate for the appellant contended that there is inordinate delay in lodging of the F.I.R. The complainant had come back to his house at 8-30 p.m. But he lodged report on the next day at 12-30 p.m. No explanation of delay is advanced by the prosecution. The learned Advocate further contended that judicial confession of the appellant Muhammad Ali and Anwar Masih cannot be termed voluntarily and true as the confession have been recorded of appellants, in the presence of each other; and also after 14 days of the arrest, no certificate under section 364, Cr.P.C. Is appended by the Magistrate, and that no mandatory questions were put to the appellants to ascertain the correctness and voluntariness of the confession. He further contended the recovery of the ransom money from these two appellants could not be believed as there are glaring contradiction in the evidence of witnesses in this point.
11. ' Mr. Naqvi, learned counsel for the appellant Bhawal Khan contended that the confession of accused-appellant Bhawal Khan cannot be considered as no certificate under section 364, Cr.P.C.
12. Is appended with it, and also that confession has been recorded on oath, Evidence against the appellant on the point of kidnapping is the ocular evidence of complainant Muneer Karam Ali and P.W. Ejaz Hashim. There is no eye-witness to incident of kidnapping.
13. According to the complainant he had informed his brother-in-law Ejaz Hashim on phone at the instance of appellants regarding abduction and demand of ransom money. P.W. Ejaz Hashim in his deposition has stated that ,he received a phone call from the complainant of his kidnapping and demand of ransom money. According to the evidence of Ejaz Hashim he and others were present in the house of the complainant when complainant returned back to his house at 8-30 p.m. But complainant did not inform them regarding his kidnapping and ransom. There is unexplained delay in lodging F.I.R. Which has been lodged at 12-30 p.m. On next day, whereas the complainant returned back at 8-30 p.m. On the same day of incident. He has not given any plausible explanation for delay in lodging the F.I.R. In 164, Cr.P.C. Statement of Ejaz Hashim he did not state that the complainant had phoned him that he is kidnapped and appellants were demanding ransom money for his release. The relation between the complainant and appellant Muhammad Ali are strained as Muhammad Ali who was driver of the complainant was dismissed from service some days earlier, and that harsh words were exchanged between the parties. In view of these circumstances the ocular evidence of complainant Muneer Karam Ali and P.W. Ejaz Hashim by itself do not establish kidnapping of complainant Muneer Karam Ali and demand of ransom from him by the appellant. It needs strong corroboration.
14. ' Other piece of evidence against that appellants is payment of ransom money and apprehension of appellants Muhammad Ali and Anwar Masih at the time of receiving of ransom money.
15. ' On the point of payment of ransom amount, there is evidence of Muneer Karam Ali P.W. Ejaz Hashim, P.W. Muhammad Farooq and P.W. Manthar. According to the evidence on receiving a telephone call from kidnappers, complainant Muneer Karam Ali produced currency notes of Rs,1,20,000 before the police who noted down their numbers, and the amount was put into one envelope. Complainant alongwith Ejaz Hashim left from the appointed place with ransom money followed by the police party, and at the appointed place of envelope containing ransom money was handed over by the complainant to appellant Muhammad Ali. Within few minutes the police party alongwith Law Enforcing Agency apprehended the appellant Muhammad Ali and Anwar Masih and recovered Rs,1,00,000 from Muhammad Ali and Rs,20,000 from Anwar Masih. Intriguing part of this evidence is that full amount of Rs,1,20,000 was handed over to appellant Muhammad Ali in the sealed envelope and both the appellants Muhammad Ali and Anwar Masih were apprehended there and then but Rs,1,00,000 have been recovered from Muhammad Ali and Rs,20,000 from Anwar Masih. There is no evidence that at the appointed place within presence of the witnesses, appellant had distributed the amount. Apart from this the witnesses contradicts each other on material points.
16. ' Another piece of evidence against the appellant is that of the judicial confessions. Appellant Muhammad Ali and Anwar Masih were arrested on 7th November, 1992 whereas judicial confession was recorded on 21st November, 1992, after 14 days of the arrest. There is no explanation from the side of the prosecution about the delay, which causes doubt on the voluntariness of the confessions. Both these appellants were produced before the Magistrate on the next day of the arrest and remand of 14 days obtained. If the confessions of both the appellants were voluntary, then on the very day, when they were first produced before the Magistrate their judicial confessions could have been recorded. In order to determine whether the confessions are voluntary or not the attending circumstances must be subjected to very close, minute and rigid scrutiny. Then alone the probative value of the confessions could be determined. As held by the Division Bench headed by Mr. Justice Ajmal Mian, Acting Chief Justice (as he then was) in the case reported as Wali Muhammad v. The State 1986 PCr.LJ 1153 in evaluating the voluntariness and truthfulness of the confession following circumstances should be considered:--
(1) The character and duration of the custody.
(2) Whether the confessor was placed in a position to seek the advice of his relatives or his lawyers?
(3) The nature and quantum of proof which was available against the confessor before he confessed.
(4) Whether the confessions were consistent with the other evidence which was available at the time when the confession was made?
17. ' In the instant case the appellants were in police custody for more than 14 days. There is nothing on the record if they had any access to any lawyer. Unexplained delay in recording of the confession, itself invariably leads one to inference that the time was utilized in extracting his confession. Same view is held in the State v. Mehboob-ur-Rehman 1995 PCr.LJ 600, Arif Nawaz Khan and 3 others v.
18. The State PLD 1991 FSC 53, and Muhammad Riaz and 3 others v. The State PLD 1994 Pesh.
19. 102.
20. ' Not only that there is unexplained delay in recording the F.I.R. But these confessions have been retracted by the appellants in their 342, Cr.P.C. Statements. Retracted confession is a very weak piece of evidence and needs strong corroboration before it can be believed. In State v. Ahsan Shah and 4 others 1989 PCr.LJ 2234 a Division Bench of this Court has discarded a retracted judicial confession as there were no corroboration of independent piece of evidence to the retracted confessions. Corroboration should be from very strong independent source which by itself should be sufficient for conviction, because one piece of tainted evidence do not corroborate another piece of tainted evidence. In the instant case the factum of kidnapping of complainant Munir Karam Ali is by itself doubtful as discussed earlier. This factum of the kidnapping also needs corroboration. Arrest of the appellants with the ransom amount has also been held doubtful. As such all these pieces of evidence, which are themselves pieces of tainted evidence cannot be used to corroborate the retracted confession.
21. ' Apart from this, the confession is not recorded in a proper way, and all the required questions are not put to the appellants which were necessary to ascertain the truthfulness and voluntariness of the confessions. No questions have been put to the confessing accused as to why they are making confessions or whether they have been asked by the police to become approver. Whether they have been tortured by the police to extract confessions. No certificate is appended by the Magistrate regarding his opinion and truthfulness of the confession.
22. ' In so far as the confession of appellant Bhawal is concerned the confessional statement Exh.25 discloses that confession had been recorded on oath. Confession recorded on oath is inadmissible and cannot be considered. This confession was retracted by the appellant Bhawal in his 342, Cr.P.C.
23. Statement, as such it needs strong corroboration before it is believed. Another piece of evidence against Bhawal is identification test where he was properly identified by the kidnappee Munir Karam Ali. As the factum of kidnapping by itself needs corroboration, the identification is of no value unless the factum of kidnapping is proved beyond reasonable doubt.
24. ' In view of all above discussions, we are of the view that prosecution failed to prove the guilt of the appellant beyond reasonable doubt. In case any doubt is created then the benefit will go to the accused not to the prosecution. The evidence collected by the prosecution are tainted piece of evidence as such they do not corroborate each other. We are of the opinion that the learned trial Judge was not justified in relying upon these pieces of tainted evidence for conviction of the appellants. Accordingly we allow the appeal, set aside the judgment and conviction of the appellant, and they are set at liberty if not warranted in any other case. These are the grounds of our short order already passed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.