' This appeal is directed against the judgment, dated 17-10-2002, passed by the Additional Sessions Judge, Sibi, whereby the appellant was convicted under section 392, P.P.C. And sentenced to undergo rigorous imprisonment for ten years with a fme of Rs,30,000 or in default to further suffer four months' S.I. The benefit of section 382-B, Cr.P.C. Was extended to him.
2. The facts forming the background of the case are that on 23-10-2000 Umar Din P.W.3 went to Police Station Levies Sui, Dera Bugti at 3-30 p.m. And lodged F.I.R. Exh.P.3/A in respect of an occurrence that allegedly took place on the same date at 2-00 p.m: According to the complainant he was resident of Bugti Colony Sui and owned Wagon No,QAJ-8636 which he used to ply as a taxi on Sui Kashmore Road.
' At about 1-00 p.m. When he reached near Sui Canal driving his vehicle with passengers in it seven dacoits who had muffled their faces appeared at the scene. Out of them four were carrying kalashnikovs. The vehicle was forcibily stopped and bodies search was made of all the passengers by them, and their belongings like cash and finger rings etc. Were snatched. He was robbed of sum of Rs,500 while his cleaner was deprived of R.5.800. The complainant further alleged that he reported this matter to the officials of Frontier Corps but they did not take any action.
3. Investigation was initiated by Masood Ahmad, Tehsildar, Sui, P.W.5. He went to the place of occurrence and prepared site plan. He received secret information that the appellant was involved in the dacoity. Accordingly, on 24-10-2000 he, alongwith a posse of police officials, went to the house of the appellant and arrested him. One unlicensed pistol, seven live bullets and a watch were allegedly recovered from him.
' It is the case of the prosecution that the appellant was taken to the Judicial Magistrate, Sui on 26- 10-2000 before whom he got recorded his confessional statement. The co-accused of the appellants, despite efforts could not be arrested and remained absconders. After completion of the investigation final challan report was submitted before learned Sessions Judge, Sibi. Only the - appellant was tried by Additional Sessions Judge, Sibi Division Sibi, who pronounced the impugned judgment.
4. The appellant was charge-sheeted for the offence under section 17(3) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. He pleaded not guilty and claimed to be tried.
Accordingly, the prosecution was directed to produce its evidence.
5. The prosecution produced Ali Dost as P.W.1, who deposed about the recovery of a pistol alongwith seven live bullets and one watch from the possession of the appellant vide memo.
Exh.P.I/A and Exh.P.1/B.
' During cross-examination, the witness deposed that he did not enter the house of the appellant and stood outside at the time of raid. He conceded that there were no identifying marks on the pistol and the recovered live bullets were not shown to him in Court. He went on to depose that the recovery memo. And parcel etc. Were prepared by the Tehsildar in his office and he signed the same there. He denied the suggestion that he did not accompany the Tehsildar at the time of raid.
' Mr. Abdul Hakim, Judicial Magistrate appeared as P.W.2 and stated that he recorded the confessional statement of the appellant under section 164, Cr.P.C. As Exh.P.2/A. He also proved his certificate qua the proceedings about confessional statement (Exh.P.2/B).
' While being cross-examined he admitted that the certificate Exh.P.2/B he did not mention the fact that he had allowed time to the appellant to ponder over the matter before recording the confessional statement. He denied the suggestion that appellant was neither produced before him nor his confessional statement was recorded.
' Umar Din complainant entered the witness-box as P.W.3. He deposed about the alleged occurrence as divulged in the F.I.R. Exh.P.3/A.
' This witness was not cross-examined by the defence despite opportunity being granted in this regard.
' Bachal P.W.4, cleaner of the vehicle duly supported Umar Din P.W.3 about the occurrence. He, too, was not cross-examined by the defence.
' Last witness produced by the prosecution was Masood Ahmed, Tehsildar (P.W.5). He deposed about the various steps taken by him in the investigation of the case and submission of challan in Court.
' In his cross-examination, the witness deposed that he received secret information about the presence of the appellant at his house at 12-00 night and he arrested him on 24-10-2000 at 6-00 a.m. He denied the suggestion that no recovery was effected from the appellant.
6. After closure of the prosecution evidence, the statement of the appellant was recorded under section 342, Cr.P.C. He denied the prosecution case in toto. In reply to the question No,3, as to whether on 26-10-2000 he appeared before Mr. Abdul Hakim, Judicial Magistrate, Sui (P.W.2) and got recorded confessional statement- wherein he admitted his guilt and mentioned the name of his co-accused also, the appellant stated that it was not true.
7. The appellant stated that he would enter the witness-box in his own defence under section 340(2), Cr.P.C. And also lead defence evidence.
8. On 23-8-2002, the statement of the appellant was recorded on oath under section 340(2), Cr.P.C.
He de-posed that he was a milk-seller by profession and was present at his house when Levies and police officials came there and arrested him. According to him nothing was recovered from him and he was innocent. He was cross-examined by the learned A.D.A. He denied the suggestion that on 26-10-2000 he appeared before Mr. Abdul Hakim, Judicial Magistrate, P.W.2 and made confessional statement, fully implicating himself as one of the culprits in the crime. He refuted the suggestion that pistol was recovered from him.
' D.W.1, All Murad deposed that he, knew the appellant as he was his neighbour. He went on to state that he and the appellant jointly used to sell milk. At 10-00.p.m. On the fateful night, the appellant was with him and then both separated and the appellant went to his house. On the following morning he learnt about the apprehension of the appellant. According to him the appellant' was innocent and nothing was recovered from him. He denied the suggestions put to him during the course of cross-examination, inter alia, to the effect that from the possession of the appellant a pistol was recovered and he was involved in the case. He refuted/denied the allegation that he was jobless and had entered the witness-box to favor the appellant after taking some money from him.
9. I have heard the learned counsel for the parties and perused the record with their assistance.
' It is contended by the learned counsel for the appellant that the so-called recoveries, effected from the appellant, carried no evidentiary value so as to connect the appellant with the crime. It was argued that the wrist watch and pistol as well live bullets did not carry any identifying marks so as to connect the appellant with the crime. It is further contended that the only Other piece of evidence, heavily relied upon by the prosecution i,e, judicial confession, was retracted by the appellant and in the absence of any corroborative material it was not safe to convict the appellant.
' On the other hand the learned counsel appearing for the State had lefended the impugned judgment and stated that appellant has been rightly convicted and sentenced.
10. It is not the case of the prosecution that anyone of the accused was identified at the spot as they had muffled their faces. The recovery of pistol, live bullets and wrist watch does not connect the appellant with the crime as nobody came forward during the trial to claim any of these articles.
Significantly, the appellant was not proceeded against for keeping unlicensed pistol with him.
11. Thus, the only incriminating evidence left against the appellant was the judicial confession made by him before the learned Magistrate under section 164, Cr.P.C. Which was retracted by him at the earliest opportunity. It was suggested to the learned Magistrate, during the course of his deposition, that he did not record the judicial confession of the appellant. Even in his statement under section 342, Cr.P.C. The appellant specifically denied, while replying to question No,3, that he made any confessional statement before the learned Magistrate.
12. In Islamic Criminal Justice System confession of an accused is used in the meaning of acknowledgment. The confession is thus, the total acknowledgment of one's guilt. Technically, confession means the evidence of a person against himself. It is one of the strongest source of proof in Islamic Criminal Justice System. It is termed as Sayeedul Hujaj (URDU TEXT) i,e, king of all sources of proof. The Holy Qur'an and Sunnah of the Holy Prophet (peace be upon him)recognize it as a source of proof of crime and rights. Regarding its legality, the jurist have derived arguments from the Qur'anic Verses and tradition of the Holy Prophet (peace be upon him).
' It is ordained in Holy Qur'an thus: 0! Ye who believe, Stand out firmly for justice, as witnesses to Allah, even as against yourself, or your parent (4:135). Here, in this Qur'anic Verse, the word (yourself) signifies confession because when a person gives evidence against himself, he makes confession. The jurists have also derived argument regarding the legality of confession from this Qur'anic Verse. "But man will be evidence against himself". (75:15).
13. As far as the Sunnah of the Holy Prophet (peace be upon him) is concerned, we have an important case wherein the judgment of stoning to death was delivered on the basis of confession i,e, the case of Ma'iz Aslami" who confessed before. Holy Prophet (peace be upon him) four times being guilty of illicit intercourse with a woman. The Holy Prophet (peace be upon him) turned his face away from him but the man came to that side to which the Holy Prophet (peace be upon him) had turned his face. The Holy Prophet (peace be upon him) asked many questions from him like, did you have sexual intercourse with her? He said: Yes. The Holy Prophet (peace be upon him) then said: Probably you have kissed winked or looked at her? Mai'z, said No,0 Allah's apostle". The Holy Prophet (peace be upon him) again asked: or you made? He said No, Then asked: Are you married?
He said yes After his repeated confessional statements, the Holy Prophet (peace be upon him) ordered to award him the punishment of Rajam i,e, stoning to death (Bukari Vol.8 page 535 English translation).
14. One of the conditions for the validity of confession is that it must be made before the competent authority because Ma'iz Aslami when committed Zina, he appeared before the Court of the Holy Prophet (peace be upon, him) and confessed his crime. If confession is made outside of the Court or in private place, about its validity, the jurists have divergent views. According to Imam Abu Hanifa, if confession is made outside of the Court, not before the Qazi, its validity is in question even if the witnesses appeared before the Court and gave evidence of his confession outside of the Court. The evidence of the witnesses shall not be taken into consideration. Because if a confessor confessed before the Court, then the offence shall be considered as proved on the basis of his confession, not by the evidence of the witnesses.
15. Retraction from confession in matters where the right of Allah is predominant like Zina and drinking wine is admissible before or E after the announcement of judgment or during the execution of the punishment.
16. The question as to whether the retraction must be through express word or falsification, contradiction and running away during the execution of Hadd punishment is open to debate.
According to majority of the jurists like Imam Abu Hanifa, Imam Malik and Imam Ahmad, retraction in express word is not a condition but mere running away during the execution of punishment would amount to retraction. The majority of the jurists have derived arguments from the case of Ma'iz Bin Aslami, (supra) who ran away when the people started stoning him and cried that "0 people, return me to the Holly Prophet (peace be upon him). My people have deceived me by saying that the Prophet will never kill me". As a result of stoning by the people, he was ultimately killed and the matter was then brought into the kind notice of the Holy Prophet (peace be upon him). The Holy Prophet ( peace be upon him) (ARABIC TEXT) said would that you have left him free (unpunished).
17. At this stage it would be beneficial to refer to case-law on the subject. The Supreme Court of Pakistan in Arabistan and others v. The State 1992 SCM R 754 has laid down that the judicial confession if it rings true and voluntary, can be made the sole basis for the conviction of the maker thereof. However, if the same is retracted, even then its evidentiary value is not diminished if the same gets corroboration from other facts and circumstances of the case. In other words in such eventuality independent corroboration from other evidence, direct or circumstantial, is essential.
' The same was the view of this Court in the case of Ali Akbar v. The State 2001 PCr.LJ 890 at 894 and 895.
' In Ch. Muhammad Yaqoob and others v. The State 1992 SCM R 1983 the apex Court has laid down at page 2014 of the report that a retracted confession may be treated to be sufficient to sustain a conviction for a capital offence, if the Court is of the view that the same is voluntary and is true, but as a rule of prudence the same should not be acted upon unless corroborated by some other reliable evidence in material details. (the underlining is mine).
18. The appellant was convicted for offence under section 392, P.P.C. i,e, committing dacoity thereby impinging on the rights of individuals. His judicial confession, in the light of Sunnah of Holy Prophet (peace be upon him) was no in violation of rights of Allah (case of Ma'iz Bin Aslami related to Zina which infringed the right of Allah). His retraction from judicial confession, therefore, did not, by itself, absolve him of the guilt confessed.
' However, keeping in view the rule of law deducible from the authorities of superior Courts of the country (supra) in order to sustain his conviction on the basis of retracted confession, corroboration from other direct or circumstantial evidence was called for. M discussed in earlier part of this judgment there was no evidence, whatsoever, produced by the prosecution to lend support to his retracted confession. He could not, therefore, be legally convicted for the offence under section 392, P.P.C. And merited acquittal.
' The upshot of the above discussion is that the appeal is accepted. The impugned judgment is set aside and the appellant is acquitted. He shall be released from jail, forthwith, if not required in connection with any other case.