JUDGMENT SHEET
IN THE HIGH COURT OF SINDH CIRCUIT COURT LARKANA
Cr. Appeal No. 89 of 2000
PRESENT
Mr. Justice Muhammad Afzal Soomro, J.
Mr. Justice Gulzar Ahmed,J. _________
Date of hearing : 11.11.2004.
Appellants : Irshad Ali & Ishho & others through Mr. Muhammad Ayaz Soomro, Advocate.
Respondent : The State through Mr. Mushtaque Ahmed Kourejo Advocate
MUHAMMAD AFZAL SOOMRO, J.- This appeal is directed against the Judgment dated 25.10.2000 passed by learned Judge Anti Terrorism Court. Larkana in Crime FIR. No. 137 of 1999 of Police Station B-Section District Sukkur for an offence u/s 365/A, 368, 109, 120-B PPC and Section 7(1))(b) of Anti-Terrorism Act, 1997, whereby, while acquitting the co-accused Abdul Wahab Soomro. Nadeem Awan, P.C. Nazir Ahmed, Muhammad Hassan and Riaz by caste Jatt, the appellant No.1 was sentenced to death u/s 365-A, PPC and also his property was forfeited to Government Treasury. He was also convicted u/s 7(I)(b) of A.T.A. 1997 and sentenced to imprisonment for life and also pay fine of Rs.50,000/-. In default of payment thereof to undergo R.I. for one year more and the Appellants No.2 and 3 were convicted u/s 368 PPC r/w Section 34 PPC and sentenced each of them to imprisonment for life and also forfeited their property to Government.
Brief facts giving rise to the present appeal are that the complainant owns and runs a shop in the name of Gulshan Cloth House at Shahi Bazar Sukkur. On 8.8.1999 at about 6:00 p.m. Muhammad Arif, owner of neighboring shop called the complainant to attend his telephone. The complainant attended telephonic message. The person talking on telephone made a disclosure that they had abducted his son Muhammad Amjad aged about 16 years and will be released on payment of ransom amount of Rs.12 lacs. He was warned to be careful and not to inform the Police else his son would be murdered. Complainant also directed to wait for next call. Complainant came back at the shop and narrated the above facts to his brothers Muhammad Iqbal and Muhammad Sadique who disclosed that the boy was missing. On 16.8.1999 complainant received second call at the neighboring shop of Muhammad Naeem where the same person told complainant to arrange for Rs.8 Lacs else he will not see the face of his son. On the following day, when complainant was contacted by culprits on the shop of Muhammad Naeem at the request of complainant demand of ransom was reduced to Rs.6 lacs. On 26.8.1999 complainant was finally told by culprits to bring Rs.5 lacs at Karachi Cantt where their persons would collect the same. Thereafter on the advise of nekmards the FIR was lodged as above.
Thereafter, the Police started investigation and in due course the appellant No.1 alongwith co-accused Abdul Wahab where arrested on 30.8.1999 and on 28.8.1999 on spy information S.H.O. Rao Anwar Ahmed of P.S.Gulzar Hijri raided Flat No. D-5 at A-1 Apartments Karachi and recovered Muhammad Amjad from possession of two lady accused namely Mst. Qaisar Jahan and Mst. Razia Mangi who were also arrested. Ultimately present appellants/accused besides others were challaned on 13.9.1999 and sent up for trial. The charge was framed u/s 365/A, 368, 109, 120-A & Section 7(I))b) of A.T.A. Act 1997 R./w Section 34 P.P.C. and pleas of the accused were recorded in which all of them pleaded not guilty and claimed to be tried. In the challan accused namely P.C. Nazir Ahmed. 2) Muhammad Hussain Jatt and 3) Riaz Ahmed Jatt were shown as absconders.
During trial, the prosecution examined Complainant Muhammad Ayub at Ex.22. P.W. Muhammad Naeem at Ex. 23, P.W. Muhammad Iqbal at Ex.24, P.W. Muhammad Jaffar at Ex.25. P.W. SIP Muhammad Anwar at Ex.26, P.W. ASI Iftikhar Ali Ex.27. P.W. Agha Khalid, Special Magistrate, Municipal Corporation Sukkur at Ex.28, P.W. SIP Tahir Hussain Mughal at Ex.28-D, P.W. SIP Tahir Hussain Mughal at Ex.29, P.W. Inspector Anwar Ahmed the then S.H.O. P.S. Gulzar-e-Hijri at Ex.32 and P.W. H.C. Muharam Ali at Ex.33.
All the accused recorded their statements under Section 342, Cr.P.C. in which they have denied all the prosecution allegations and pleaded innocence. None of the accused examined themselves on Oath in disproof of their charges.
Thereafter, the learned trial Court heard arguments and passed an impugned judgment extending benefit of doubt and acquitted co-accused but convicted the present appellants on the same set of evidence, hence this appeal.
We have heard learned counsel for the respective parties and perused the material on record. Learned counsel for the appellants have argued that name of appellants did not find place in the FIR, there is no eye witness of the incident; the confessional statement was recorded after the Court hours, that the confessional statement was recorded after 7 days from the arrest of appellant Irshad @ Ishoo and co-accused Abdul Wahab and later on the same confessional statement was retracted at an earlier opportunity and therefore, on the strength of retracted confessional statement which was neither true nor voluntary. More so accused can not be convicted for alleged offence of Kidnapping unless it is corroborated by another reliable piece of evidence. He further argued that signature of appellant was obtained on blank paper by the Reader of Special Magistrate, Municipal Corporation, Sukkur. He also argued that the appellant No.1 Irshad was of tender age being 13 years 11 months and 23 days at the time of occurrence, and the death sentence awarded to him is not warranted under the law; that Section 365-A PPC is not attracted in as much as the demand for ransom was not established, the identification of accused Irshad Ali alias Irshoo has been based on telephonic talk for which no identification test through voice was held. However, the identification of accused on his voice is a weak piece of evidence and the same be supported by some other valuable piece of evidence from an independent source. He asserted that as per evidence, complainant was of opinion that the caller who demanded ransom was Irshad Ali but surprisingly he did not mention his name in the FIR as such it is unbelievable and after thought. He argued that confession of accused Irshad and co-accused Abdul Wahab was recorded on the same day but the learned trial Judge has believed the confession of appellant No.1 partly, and partly not accepted but believed the confession of acquitted accused Abdul Wahab in toto. That on same facts and circumstances, the prosecution evidence can not be accepted. He further argued that after recording confessional statement before a leaned Magistrate, handed over the custody of accused to same ASI Ameer Baig who not sent them to Jail custody which is unwarranted by law. He further submitted that the P.Ws Muhammad Ayoob and Muhammad Iqbal had confirmed in their cross examination that parents and women folks of co-accused Abdul Wahab were detained at P.S. who were released after his confession being recorded. The credibility of investigating agency was badly shattered which can not be ruled out. The confession of accused Irshad Ali was also as a result of duress and mental torture. He further submitted that it is well settled that it would be too dangerous to rely upon on uncorroborated and retracted confession. Learned counsel further argued that the two spy personels who allegedly played heroic role for S.H.O. Tahir Hussain in the entire episode of investigation, have not been examined nor cited as witness. The prosecution has failed to examine Muhammad Arif on whose shop complainant received first call. He candidly argued that in fact the abductee caller boy has not been recovered from the possession of present appellants Mst. Razia and Mst. Qaisar Jahan but they themselves had brought him at P.S. on the telephone call of P.W. Rao Anwar Ahmed. S.H.O P.S. Gulzar-e-Hijri where they were arrested; that on 27.8.1999 Mst. Qaisar Jahan had brought the boy at P.S. herself who was returned back to her as per Roznamcha entry No. 30 dated 27.8.1999, at 1430 hours maintained at the same P.S. such entry, is also brought on record. He also submitted that the appellant Nos.2 and 3 being ladies were not habiual criminals but are simply house wives and the appellant No.2 Mst. Razia is aged about 35 years having 2 children and appellant No.3 Mst. Qaisar Jehan is aged about 27-28 years having 7 children. Learned counsel for the appellants has referred to several contradictions in the prosecution evidence and legal flaws in recording the confessional statement of accused Irshad @ Ishoo.
Apart from the merits of the case learned counsel for the appellants has also argued that the parties have taken their summer sault and buried their hatchets as a consequence whereof they have shun their differences for which P.W. Muhammad Ayoob, the complainant and P.W. Muhammad Iqbal, brother of complainant, have filed their affidavits before this Honourable Court, to the effect that they have forgiven the accused in the name of almighty Allah and have no objection if they are acquitted in this case.
On all these submissions learned counsel for the appellants has contended that the prosecution case suffers from various doubts for which benefit can be extended to the appellants besides co-accused but the trial Court has failed to make out proper appraisal of evidence and in view of the material available on record, the impugned judgment is liable to be set aside. In support of his submissions, he has relied upon the following case laws:-
1. Sultan Ahmed v. Additional Sessions Judge Mianwali PLD 2004 SC 758.
2. Hasan Zafar v. State 2001 P.Cr.L.J. 1939
3. Shera v. The State 200 P.Cr.L.J. 139
4. Ordinance XXII of 2000, Juvenile Justice System Ordinance, 2000 guidelines PLD 2000 385 at page 391,
5. State v. Muhammad Ashique 1994 P.Cr.L.J. 696.
6. State v. Ghulam Shabbir 1993 P.Cr.L.J. 152,
7. Ghulam Ali v. The State 1997 SCMR 1411,
8. Nazar Muhammad v. State 1994 P.Cr.L.J. 1829,
9. Khan Said v. State 2003 P.Cr.L.J. 531,
10. Allah Ditta v. State 1988 SCMR 1489,
11. Ghulam Rasool v. State 1999 SCMR 3085,
12. Muhammad Nadeem vs. State NLR 1988 Cr. 614.
13. Mukhtar Ahmed v. state 1999 P.Cr.L.J. 1107,
14. Mureed v. Golo P.L.J. 1996 Cr.C. (Karachi) 1672,
15. Arif Nawaz Khan vs. State P.L.D. 1991 F.S.C. 53,
16. State v. Muhammad Naseer 1993 S.C.M.R. 1822,
17. Shamoon @ Shama v. State 1995 S.C.M.R 1377,
18. Rahat Ali v. The State 2001 P.Cr.L.J. 98 (D.B) Kar. (a)(b).
19. Ahmed Sher v. The State P.L.D. 1995 P.S.C. 20,
20. Mahmood Ahmed v. The State 1995 S.C.M.R. 127.
Mr. Mushtaque Ahmed Kourejo, learned counsel appearing on behalf of the state has contended that this is case of abduction of a minor boy aged 6 years who was recovered by SHO Rao Anwar Ahmed at Karachi by conducting raid at the house of appellant Mst. Qaiser and appellant Mst. Razia, was also available there, that the appellant Irshad @ Ishoo has recorded his confessional statement being voluntarily made and in the these circumstances conviction can be based on this piece of evidence alone. He further submits that the death sentence can not be awarded to accused Irshad being minor; the entry No. 30 was maintained in the Roznamcha on 27.8.1999 by ASI Aijaz Rajpar and P.C. Nazir while the raid was conducted on 28.8.1999. However on these submissions, he supported the impugned judgment.
We have given our careful consideration to the arguments of learned counsel for the respective parties, gone through the evidence and other material brought on record with the help of learned advocate for the appellants.
We have also minutely gone through the evidence of prosecution witnesses with the assistance of learned counsel for the appellants who has pointed out towards a number of contradictions in evidence of prosecution witnesses. The perusal of evidence of P.W. Muhammad Ayoob shows that after 4/5 days of handing over the abducted boy to him, S.H.O. Tahir Hussain recorded statement of 2 persons namely Irshad @ Ishoo and co-accused Abdul Wahab in which they disclosed that they had kidnapped his son, while in his cross examination he stated that he did not disclose the names of accused to police. His statement was also confirmed by P.W. Muhammad Iqbal and both of them deposed that, as far as, their conduct and behavour is concerned, they had no grievance with accused Irshad @ Ishoo and co-accused Abdul Wahab out of whom accused/appellant Irshad worked as servant at their shop for 8/10 days, but co-accused Abdul Wahab, continued working at their shop till they are arrested in this case. Whereas P.W. Muhammad Anwar I/C S.H.O. Police Station B-Section deposed that P.Ws had provided names of accused in their statement u/s 164, Cr.P.C. however, this was denied by above P.Ws. In this context, Muhammad Siddique, brother of complainant, who was not examined, came up with entirely contradictory version in his statement u/s 164 Cr.P.C. Both accused were ousted from their shop as they were found involved in illegal activities. On the other hand, P.W. Tahir Hussain S.H.O. P.S. B-Section claimed in his evidence that he came to know through two spies that accused Irshad @ Ishoo and Abdul Wahab might have abducted Muhammad Amjad. Similarly, P.W. Muhammad Ayoob stated in his evidence that the voice of caller was identified by him to be that of accused Irshad. In this regard. P.W. Muhammad Iqbal stated in his evidence that after second call, complainant disclosed him that voice of caller who demanded ransom was Irshad Ali @ Ishoo which clearly show that before lodging F.I.R. It is well settled that it was Irshad who demanded ransom but surprisingly they did not disclose his name in the FIR on the other hand both of them stated in their examination that they had no suspicion as regards the kidnapping of Muhammad Amjad was concerned. P.W. Muhammad Naeem owner of shop who called the complainant to attend second call, speaking about the caller received by complainant on 16.8.1999 at 8:00 p.m. at his shop when conversation was not disclosed to him by complainant. He did not disclose any thing about third call. As per F.I.R. it was Muhammad Arif who called the complainant to attend first call but he had not been examined. The identification test through voice of accused Irshad Ali @ Irshoo is not a sufficient piece of evidence in absence any examination through voice of accused Irshad. All these facts create doubt as to whether demand for ransom was actually made through telephone or not. As regard to the source of information, involvement of accused Irshad and co-accused Abdul Wahab, statement of P.W. Muhammad Anwar I.C. S.HO. P.S. B Section and P.W. Tahir Hussain appears to be inconsistent with each other.
As regard the case of appellants No.2 and 3 are concerned, P.W. S.H.O. Rao Anwar Ahmed of P.S. Gulzar Hijri Karachi deposed in his evidence that on 28.8.1999 he received spy information about presence of abductee Amjad Ali in A-One apartments, who was abducted from Sukkur vide Crime No. 137/1999 of P.S. B-Section Sukkur on which he left for pointed place and receive Flat No.B5 wherefrom Amjad Ali was recovered in the captivity of two lady accused namely Mst. Qaiser Jehan and Mst. Razia Mangi who also were arrested under Mashirnama. This aspect of the case is controverted by the appellant/accused Nos.2&3. Appellant Mst. Qaiser jehan has stated in her statement u/s 342 Cr.P.C. that infact on 27.8.99 she had approached P.S. herself with minor boy Amjad Ali and disclosed that he met them and her son three days back and release the responsibility of a good citizen, they kept the boy safe, and then she was directed by Police to keep the boy with her in safe custody till the arrival of Police who came into contact with the parents of boy as no security arrangements were met for keeping minor boy. Entry No. 30 dated 27.8.1999 was also maintained in the Roznamcha to that effect in which Telephone number of her residence was also disclosed. She further stated that actually no raid was conducted but S.H.O. Anwar Ahmed of P.S. Gulzar Hijri had made a telephonic message at his house in order to bring boy at P.S. as his parents approached P.S. but when they emerged at P.S. they were taken into custody. In cross-examination S.H.O. Rao Anwar Ahmed also admitted that before making entry No.26 dated 28.8.1999 he had seen entry No.30 dated 27.8.1999, during cross-examination he also admitted that no private person were called to act as mashir of arrest.
In this context, P.W. Tahir Hussain deposed in his evidence, that on 27.8.1999 when he again received information through spy person that accused have removed the boy to Karachi but he left for Karachi after seeking departmental permission and on reaching there i.e. 28.8.1999, he searched through private person and again met with spy information through same spies that abductee has been recovered by Gulzar Hijri P.S., hence he rushed there and found the information true. He deposed that finally the minor boy and two accused were handed over to him. When returned back on 31.8.1999 it was learnt that accused Irshad Ali and Abdul Wahab were arrested.
In view of the above discussion, it seems surprising that despite of having firm opinion before lodging FIR with regard to the identity of caller, who demanded ransom that it was accused Irshad @ Ishoo. Thereafter no cogent reason as to who prevented complainant and accused Irshad being disclosed in the FIR. No identification test through voice of accused Irshad was ever held. The incident being unwitnessed, mere word of complainant as to the identification of accused Irshad through his voice is insufficient. It is well settled that the identification of accused is a very weak piece of evidence and can not be relied upon in absence of other material. With regard to the source of information regarding involvement of accused Irshad Ali, it is not proved beyond reasonable doubt in as much as the statement of P.Ws I.C. SHO Muhammad Anwar, S.H.O. Tahir Hussain disclosing contradictory story to each other and were not supported by P.Ws Muhammad Ayub, Muhammad Iqbal and Muhammad Sadique which create doubt. The involvement of Accused Irshad Ali is also not proved beyond shadow of reasonable doubt by the prosecution. As regards the case of appellant Nos. 2 and 3 is concerned it seems that two spy personals have played heroic role for P.W. Tahir Hussain during the entire episode of investigation who has not been examined nor cited as witnesses despite of the fact that they were in their easy approach. It is surprising to note that after Entry No.30 dated 27.8.1999 being mentioned in the Roznamcha maintained at P.S. Gulzar Hijri Karachi. The investigation of the case took its pace amazingly at a high rate. On the very day i.e. 27.8.1999 P.W. Tahir Hussain received information through his spy personals firstly regarding removal of abductee to Karachi and where after when he was at Karachi, he again received information of same spies who told them that the boy was recovered through riding party at P.S.Gulzar Hijri, Karachi. It is highly improbable that he did not wait for arrest of accused/appellant Irshad Ali and Co-accused Abdul Wahab who was the proper person to inform regarding whereabouts of the abductee boy. P.W. Rao Anwar Ahmed who also acted with great astonishment and claimed of boy through raid while in his cross examination he has admitted that before he left P.S. for conducting raid, he had seen entry No.30. It is also surprising on his part that he did not take any effort for scrutinizing the genuineness of said entry and did not ask anything from signatories of that entry P.C. Nazir and A.S.I Aijaz Ali Rajpar, while leaving for raid, handed over the charge of P.S. to ASI Aijaz Ali Rajpar who was one of the signatory of the entry No.30 which apparently appears highly doubtful.
All these facts and circumstances create doubt in the prosecution is therefore, significance of Entry No.30 can not be taken out of consideration which has shattered the genuineness of above said raid being allegedly conducted at the house of Mst. Qaiser, the appellant No.3. There is clear violation of Section 103 Cr.P.C. and at different stages of investigations which is confirmed by the P.Ws SHO Rao Anwar Ahmed themselves during their cross examinations and attested by mashir/P.W. ASI Iftikhar. In view of the above discussion the prosecution has also failed to prove the involvement of the appellants No. 2&3 in the commission of crime, beyond shadow of reasonable doubt as far as merits of the case are concerned.
As regards the confessional statement of accused Irshad Ali @ Ishoo is concerned, as far the accused Irshad Ali @ Ishoo is concerned, he alongwith co-accused Abdul Wahab were arrested on 30.8.1999 and were produced by ASI, P.S. B-Section before Special Magistrate Municipal Corporation Sukkur on 7.9.1999, after delay of 7 days. P.W. Agha Khalid, Special Magistrate deposed in his evidence that at 4:00 p.m he recorded statement of accused Irshad @ Ishoo and completed the same at 4:45 p.m. Confessional statement of Co-accused Abdul Wahab was recorded at 5:45 p.m. During cross examination he admitted that both the accused were brought together on the same day. He also admitted that after recording of their confessional statement their custody was handed over to the same A.S.I. Ameer Baig. With regard to the voluntary nature of these confessional statements, P.Ws. Muhammad Ayoob and Muhammad Iqbal during their cross examination before trial Court confirmed at least in respect of co-accused Abdul Wahab that his family members including women folks were detained at P.S. After recording confessional statement they were released. In this regard P.W. Tahir Hussain states about the manner in which agreement of accused Irshad Ali was sought for recording their confessional statement. He states that for the first time on 31.8.1999, he interrogated accused Irshad Ali on 31. 8.1999 but he did not agree to make his confessional statement. He further states that he did not recollect as to when he interrogated him next time when he agreed for recording confessional statement.
On this point, we shall also discuss the manner in which he recorded confessional statement of co-accused Abdul Wahab. He admits in his cross-examination that for the first time he interrogated the accused Abdul Wahab on 31.8.1999 but he did not agree to make his confession, on next round of interrogation i.e. 3.9.1999. He agreed to make confession but not before any magistrate and lastly it was on 6.9.1999 when accused Abdul Wahab agreed to make his confession being voluntarily made before Magistrate. However, he denied the fact that he had detained his family members to seek his agreement in order to record confession.
From the above discussion, in our opinion, it appears that voluntary nature of confessional statement of accused Irshad Ali is concerned, P.Ws Muhammad Ayoob and Muhammad Iqbal, made in their cross examination to the effect that they had witnessed the family members and women folks of co-accused Abdul Wahab before Magistrate coupled with the manner adopted by S.H.O. Tahir Hussain in seeking agreement of co-accused for recording their confessional statement, had completely shattered the integrity and credibility of the investigating agency. The confessional statement of the accused Irshad Ali also can not be termed as voluntarily made. Judicial history presented abundant cautions against danger of placing too much reliance on uncorroborated and retracted confessions. Therefore, it would be dangerous to place too much reliance on uncorroborated and retracted confessions of accused Irshad Ali. The reliance is placed on the case of IMRAN BAHIR FAROOQI v. THE STATE reported in 1990 P.CR.L.J. 677, wherein under similar circumstances besides, other sentences, sentence of death awarded to the accused was also set aside.
With regard to the infirmities in recording confessional statement of accused Irshad Ali, it is admitted position that confession was recorded after the Court hours. Besides there was delay of seven days in recording confessional statement of accused who was arrested on 30.8.1999 but produced before Magistrate on 7.9.1999 therefore, in view of conduct by investigation agency as discussed above, it can not be ruled out that the ensuing period being used to cause torture and coercion on the accused to seek his agreement for recording his confessional statement, and that the custody of accused was handed back to same ASI who produced them before Magistrate and that the part of the confessional statement was accepted and remaining part was rejected by the co-accused, involved on the basis of the confessional statement of accused Irshad Ali @ Ishoo being acquitted under the impugned judgment passed by the trial Court on the point of benefit of doubt. Accused Irshad has denied the voluntary nature of his confession and stated in his statement u/s 342 Cr.P.C. that the confession was as a result of duress and mental torture. All these factors suggest that there were legal flaws in recording of concession of accused Irshad Ali @ besides confession of co-accused Abdul Wahab which was not accepted by the trial Court and he alongwith co-accused were acquitted on the benefit of doubt. Consequently, in our opinion, the confessional statement of accused Irshad Ali @ Ishoo was not recorded in accordance with the law, and it suffers from various infirmities, improbabilities and material contradictions which can not be based on such retracted and defective confessional statement in absence of other reliable and material evidence from an independent and an impeachable source. Reliance can be placed on the case of The State through A.G. N.W.F.P. Peshwar vs. Sohail Sardar reported in 1997 S.C.M.R. 1180.
With regard to the above infirmities and non-compliance of necessary requirements in recording confessional statement, variations in the prosecution evidence in connection with the validity. Genuineness and voluntary nature of confessional statement of accused Irshad Ali @ Ishoo and other aspects of the prosecution case as discussed above, we have also carefully considered the case law being relied upon by the learned counsel for the appellants, under the facts and circumstances discussed above.
In the case of SHAMON ALIAS SHAMMA v. THE STATE reported in 1995 S.C.M.R.1377, Hon’ble Supreme Court of Pakistan held that Court for the purpose of convicting the accused on the basis of his confessional statement or the plea under S.342 Cr.P.C. can not be accepted as a part of his statement and reject other part of the same. It was also held that prosecution must prove its case against the accused beyond reasonable doubt irrespective of any plea raised by him in his evidence. Conviction of accused under section 302, P.P.C. was consequently altered and his sentence of imprisonment for life was reduced to imprisonment already undergone by him.
In the case of MUHAMMAD YOUSUF v. THE STATE (1995 S.C.M.R. 351), the occurrence was un-witnessed, retracted confessional statement was neither voluntary nor supported by any reliable corroborative piece of evidence. Hon’ble apex Court held that Courts generally shall refrain from basing conviction solely on retracted confession. In the given circumstances, the accused was acquitted.
In the case of SIKANDAR SHAH v. DIN MUHAMMAD & 2 others reported in P.L.J. 2004 Cr. C. (Peshawar) 401 (DB), appellant whose confessional statement was recorded by Magistrate, had been in police custody from 20.7.2002 to 31.7.2002 and if that period is included the date on which occurrence had taken place. Only evidence against appellant was his confessional statement connecting him and his co-accused in the commission of offence, does not appear; to be free from taint, torture, duress, and manipulation. Confessional statement being recorded by appellant was after his prolonged custody of 11 days. The ocular account of occurrence was worth nothing in the case as the same does not tend to incriminate any of the appellants, besides the fact that such account was bristling with paralytic doubts and infirmities. In the circumstances, conviction and sentence awarded to appellant was set aside as his guilt was not proved beyond any shadow of doubt.
In the case of ARIF NAWAZ KHAN and 3 others v. THE STATE reported in P.L.D. 1991 F.S.C. 53, on the last date when the second remand was obtained for three days each, and on the last date when the second remand was going to expire the accused was alleged to have been produced before Magistrate for recording the confession, which was recorded after six days of arrest. It was held that if a person retracts from his confession, his retraction shall be accepted and he shall be absolved from harsh punishment, unless the hadd is proved by evidence and it could not. The confession, if at all made by the accused, was voluntarily made in the circumstances.
In the case of STATE v. MUHAMMAD NASEER reported in 1993 S.C.M.R. 1822, accused was sent to police lock up after making confession thus the prosecution failed to show that accused made the confessional statement voluntarily. It was held by Hon’ble Shariat Appellate Bench comprising of three Judges that conviction of accused can be based on the retracted confession if the Court finds that it was being voluntarily made and was true. Court before convicting accused for an offence on the basis of retracted confession, however, must look for its corroboration in material particulars from another independent pieces of evidence in the case.
As regards the contention of learned counsel for the appellants that the parties have taken their summersault and buried their hatchets as a consequence whereof they have shown their differences and they have sworn their affidavits of P.Ws Muhammad Ayoob and Muhammad Iqbal. Father and uncle of abductee Amada in which they have forgiven the accused in the name of Almighty Allah and extended no objection if the accused are acquitted.
We have considered the contentions of the learned counsel for the respective parties, perused the record relied upon and the case law cited at the bar, case laws relied upon by the learned counsel for the appellants on the point of compromise. In NAZAR MUHAMMAD v. THE STATE (1994 P.Cr.L.J. 1829), wherein a case of abduction for ransom, the matter had been reported to the police on the very next day of the release of the abductee, as the prosecution evidence was reliable. The conviction of accused was upheld in the circumstances. However, abductee had pardoned the accused, therefore, sentence of imprisonment for life awarded to each accused was reduced to imprisonment already undergone by him accordingly.
In the case of GHULAM RASOOL v. THE STATE reported in 1999 M.L.D. 3085, case was fully proved against accused not only by un-rebutted evidence of victim but by prosecution witnesses. Matter had been compromised between parties outside Court and that complainant had also forgiven them, they could be acquitted of charge in acceptance of compromise. It was held that in the offence for which accused had been convicted and sentence being not compoundable, could not be acquitted on the basis of compromise arrived at between the parties. The conviction was maintained however, accused being first offender and raw youth of impressionable age and appeared to have committed offence due to juvenile delinquency and in view of better future relations of parties, sentence awarded to accused was reduced to already undergone.
In the case of KHAN SAID v. THE STATE (2003 P.Cr.L.J. 531), victim girl as well her father had forgiven the accused and compromised the matter and prayed for reduction in sentence. Conviction was maintained and the sentence was reduced to already undergone.
In the case of MUREED v. GOLO (P.L.J.1996 Cr.C.(Kar.)1672), it was held that for fair play, good conscience and equity demand that where parties agree to a concession by forgiving act of an accused, court should lean in favour of grant of concession by dispensing justice with mercy rather than creating hardships.
In the case of STATE v. GHULAM SHABBIR (1993 P.Cr.L.J. 152), parties had entered into a compromise and the accused had compensated the complainant party. Both parties had also agreed to withdraw all litigation’s inter-se and purpose of administration of criminal law to maintain peace and tranquility had been achieved. Contention that the parties could neither compromise, nor trial Court could accept the same and acquit the accused, had no force. In the circumstances, appeal against acquittal was dismissed.
As regards the contention of the learned counsel for the appellant that the accused Irshad Ali was of tender age at the time of occurrence, hence the trial Court was not justified in awarding sentence of death. Learned counsel for the appellants has brought on record the Birth certificate of accused Irshad Ali @ Ishoo issued by Karachi Metropolitan Corporation, which shows his date of birth as 15.06.1985. The incident occurred on 8.8.1999. The assessment of his age shows that at the time of occurrence the exact age of accused Irshad Ali was 14 years 1 month and 23 days thus, it appars that he was accused of tender age being below the age of 18 years at the time of commission of the crime. The definition of child is discussed in Ordinance XXII of 2000 Juvenile Justice System Ordinance, 2000 and the same is reproduced hereunder for the benefit of appreciation:
“(b) Child means a person who at the time of commission of offence has not attained the age of eighteen years; "
Section 299(a) also provides definition of an adult, which reads as under:
“299(a) “adult” means a person who has attained, being a male, the age of eighteen years.”
It is well settled principles of law that the accused being of tender age at the time of occurrence can not be convicted and sentenced to death as defined in Juvenile Judicial System Ordinance, 2000. Learned State counsel has not challenged the Birth certificate filed on behalf of the appellant Irshad Ali and extended his consent that accused Irshad Ali, being an accused of tender age at the time of occurrence, was not liable to be convicted and sentenced to death.
We have considered the case laws relied upon by learned counsel for the appellant on this point. In the case of SHERA v. THE STATE reported in 2000 P.Cr.L.J.139, accused was of 16 years of age at the time when he committed murder, hence he was not an adult within the meaning of S.299(a), PPC. It was observed that the sentence of death awarded to accused by the trial Court was illegal. Sentence of death was altered to the imprisonment for a period already undergone and payment of Diyat.
In the case of HASSAN ZAFAR v. THE STATE reported in 2001 P.Cr.L.J. 1939, it was observed that Juvenile Court alone can decide whether an accused is a child or not on the basis of unimpeachable documentary evidence and after obtaining medical opinion.
As regards the contention of learned counsel for the appellants that the demand of ransom was not established, therefore, ingredients of section 365-A, PPC are not attracted, the perusal of material available on record show that the complainant had identified the caller as accused Irshad Ali k@ Ishoo, who demanded ransom, before lodging the F.I.R. But he did not give name of accused Irshad Ali in the F.I.R. for which he had not come up with plausible explanation. There are contradictions between the statements of P.Ws. in their evidence recorded before the trial Court to the extent that P.Ws Muhammad Ayoob and Muhammad Iqbal disclosed that they had not given names of accused to the police nor in their 164 Cr.P.C. statements but I/C S.H.O. Muhammad Anwar claimed that names ;of both the accused were given by P.W Muhammad Sadiq, brother of complainant in his 164, Cr.P.C. statement, stated entirely different story that both accused were their servants at the shop who were ousted when found involved in some illegal activities. He also stated that complainant had not given name of accused in the F.I.R. due to fear. On the other hand, S.H.O. Tahir Hussain, in this regard claimed that he had called two spies who informed him that accused Irshad Ali and Abdul Wahab were involved in abducting Amjad. It appears that as to how investigating agency came to know about involvement of accused Irshad Ali and co-accused Abdul Wahab, is highly doubtful. The above glaring contradictions in the prosecution evidence suggest that in absence of other material evidence of identification of accused through voice of accused by the complainant was after thought as the F.I.R. was lodged with delay of 28 days from the occurrence; the incident was un-witnessed; the identification of accused through voice on telephone by itself is a weak piece of evidence and there being infirmities improbabilities and material contradictions in holding the retracted confessional statement of accused Irshad Ali @ Ishoo, as discussed earlier. In this regard, the reliance placed by learned counsel for the appellants in the case of RAHAT ALI v. THE STATE (2001 P.Cr.L.J.98) is very much applicable as in that case the demand of ransom was made on telephone but learned Division Bench of this Court, under the similar circumstances, found that the ingredients of section 365-A were not satisfied, hence the conviction and sentence of death recorded by the trial Court was set aside. In these circumstances, in our opinion, it has not been established beyond reasonable doubt that in fact any demand for ransom was made by any of the accused as the testimony of P.W. Muhammad Ayoob has not been corroborated from an independent source or any sort of other evidence. Reliance is placed in the case of RAZA KHAN v. THE STATE reported in (1998 P.Cr.L.J.530) wherein it was observed that anything going in favour of accused must be taken into consideration and the benefit of doubt, if any, be extended to him not as a matter of grace but as matter of right.
In the light of what has been discussed above, it has been established that the case of the prosecution is highly doubtful against the appellants 1 to 3 and the prosecution has failed to prove the fact of demand of ransom amount. As such, the appellants 1 to 3 are entitled to the benefit of doubt, which is accordingly given to them.
Consequently the impugned judgment is set aside. The appellants 1 to 3 are acquitted and set at liberty. They are in custody. They should be released forthwith, if not required in any other custody case. The appeal is allowed.
JUDGE.
Karachi. JUDGE
Dated: .12.2005.