2014 Y L R 1138
[Balochistan]
Before Muhammad Ejaz Sawati and Naeem Akhtar Afghan, JJ
SHAHMEER ---Appellant
Versus
The STATE---Respondent
A.T.A. Criminal Appeal No.(S) 79 of 2013, decided on 2nd January, 2014.
Penal Code (XLV of 1860) ---
----S. 302(c) ---Qatl -e-amd---Appreciation of evidence ---Disclosure of accused, contained
information about the murder of deceased at the place of incident and the recovery of his dead
body ---Fact that prior to disclosure of accused, the Police had knowledge and information about
the murder and recovery of dead body of deceased was admitted---Disclosure of accused was
regarded mere statement of accused before the Police, which was not admissible in evidence---
Prosecution had failed to prove its case against accused beyond any reasonable doubt ---Findings
rendered by the Trial Court in the impugned judgment being based on an inadmissible evidence
and misappreciation of evidence, could not be sustained---Conviction and sentence recorded by
the Trial Court in the impugned judgment, were set aside, and accused was acquitted and
released, in circumstances.
Sh. Muhammad Amjad v. The State PLD 2003 SC 704; Shaukat Ali v. The State 2005
MLD 1470 and Muhammad Sarfraz v. The State PLD 2013 SC 386 ref.
Ahsan Rafique Rana for Appellant.
Muhammad Rasheed for the Complainant.
Abdullah Kurd for the State.
Date of hearing: 4th December, 2013.
JUDGMENT
MUHAMMAD EJAZ SWATI, J. ---The appellant has challenged the legality, validity and
propriety of the judgment dated 17th April, 2013 (hereinafter the "impugned judgment") passed
by the Special Judge Anti -Terrorism Court, Sibi Division at Sibi (hereinafter the trial Court"),
whereby the appellant has been convicted and sentenced as under: --
"Under section 302- C Q&D, to suffer life -imprisonment with hard labour, and to pay sum
of Diyat runs to Rs.10,00,000 (Rupees Ten Lacs) to the legal heirs of deceased Abdul Razzak,
and shall remain jailed unless the Diyat amount is paid. The benefit of section 382- B, Cr.P.C. is
extended to the convict Shameer."
2. Facts of the case are that the complainant (Muhammad Khair) through application
Exh.P/1- A got registered F.I.R. No. 15 of 2011 dated 6th May, 2011 under sections 302/34
P.P.C. with Levies Thana, Bhag, wherein it is a lleged that Khan Muhammad (the uncle of
deceased) through telephone informed him that on 5th May, 2011, the appellant along with
accused Turk Ali, Khulam Hussain and Ghulam Fareed (absconders) after committing murder of
his son namely Abdul Razzak, have thrown his dead body in Jungle situated at two kilometers
away from Goth Hamza Banday.
3. The investigation of the case was entrusted to Ghulam Server (P.W.7), who visited the
place of occurrence and prepared site plan (Exh.P/7 -A), dead body of deceased wa s taken into
possession through memo Exh.P/2- A, recovered rope and Danda and clothes of deceased, which
were taken into possession through recovery memo Exh.P/2- B, Exh.P/2- C, Exh.P/2- D and
recorded the statements of witnesses under section 161, Cr.P.C., while the second Investigating
Officer Zubair Ahmed (P.W.8) prepared disclosure memo of accused Exh.P/6- A on 30th
September, 2012.
4. The Levies authority challaned the appellant. The trial Court framed charge, to which the
appellant pleaded not guilty and claimed trial. The prosecution examined 8 witnesses.
5. When examined under section 342, Cr.P.C., the appellant denied the allegations of
prosecution and claimed to be innocent. The appellant neither opted to record statement under
section 340(2), Cr.P.C, nor produced any witness in defence.
6. The trial Court after hearing the arguments and evaluating the evidence, vide impugned
judgment convicted and sentenced the appellant as mentioned hereinabove.
7. The learned counsel for the appellant contende d that none of the P.Ws. have implicated
the appellant in the commission of the offence; that the impugned judgment is based on
inadmissible evidence; that the statement of hostile witnesses cannot be made basis for
conviction; that the alleged disclosure does not fall under the provisions of Article 40 of the
Qanun- e-Shahadat Order, 1984 (hereinafter the "Order"); that the impugned judgment suffers
from misreading and non -reading of evidence.
The learned counsel for the complainant controverted the arguments of learned counsel
for the appellant and argued that the appellant has been nominated in the F.I.R. with specific
role; that the hostile witnesses have also implicated the appellant in the commission of offence;
that the prosecution has proved the ca se against the appellant beyond any reasonable doubt.
The learned State counsel defended the impugned judgment and adopted the arguments
advanced by the learned counsel for the complainant.
8. Having heard the learned counsel for the parties and gone through the evidence on
record. The prosecution case mainly hinges upon the disclosure Exh.P/6- A of appellant and the
statements of the P.W.1, P.W.3 and P.W.4 as well as medical evidence. The question for
consideration, inter alia is, whether the alleged disclosure and the statements of prosecution
witnesses are sufficient to sustain conviction. According to P.W.6 Munir Ahmed, the appellant
had made disclosure on 30th September, 2011 before the Police, whereas he was arrested on 18th
September, 2011. The pe rusal of disclosure reveals that nothing has been discovered in
consequence of the alleged information given by the appellant to Police and it does not fall
within the definition of Article 40 of the Order; rather it is a mere statement of accused before
the Police, which under Article 38 of the Order is not admissible, as held by the Hon'ble
Supreme Court in the case of Sh. Muhammad Amjad v. the State, PLD 2003 S.C. 704 has held as
under: --
"Article 38 ibid lays down that a confession made to a police officer shall not be proved
against a person accused of any offence.
The rule embodies in the above article is for the reason that a police officer shall not be
encouraged to extort confession from showing efficiency of seeking conviction. Under this
Article, a confession made to a police office is to be ignored even if it was made in the
immediate presence of Magistrate as the Article 38 is independent and not controlled by Article
39."
9. In the present case, the disclosure of the appellant Exh.P/6- A contains information about
the murder of deceased at the place of incident and the recovery of his dead body. It is admitted
fact that prior to disclosure of the appellant, the police had prior knowledge and information
about the murder and recovery of de ad body of deceased on 6th May, 2011, therefore, Exh.P/6- A
is regarded mere statement of the accused before the Police, which is not admissible in evidence.
The complainant (P.W.1) has stated that he had received information about the murder and
involvement of the appellant from Khan Muhammad (the uncle of deceased). P.W.7
Investigating Officer admitted that during investigation, he neither recorded the statement of said
Khan Muhammad nor he joined the investigation, therefore, the statement of P.W.1 is bas ed on
hearsay evidence, which under Article 71 of the Order is not admissible. The examination- in-
chief of P.W.1, P.W.3 and P.W.4 reveal that they have not involved the appellant in the
commission of offence in any manner. These P.Ws. including complainant were declared hostile
and the prosecution confronted them to their previous statements, which culminated the
conviction of the appellant. We have also considered this legal aspect of the matter. The
statement made by a witness to the police under section 161, Cr.P.C. cannot be used by the
prosecution for corroborating or for explaining any part of that witness evidence in the court.
This statement is available to the defence only for the purpose of contradicting the witness. The
proviso to section 162, Cr.P.C. makes it clear that the statement made by any person to a police
officer in the course of investigation shall not be used for any purpose except to contradict a
witness at the request of the accused. The prosecution is not permitted to prove the state ment of a
witness or to use it to contradict its own witnesses. In the case of Shaukat Ali v. The State, 2005
MLD 1470, it has been held as under: --
"5. A bare perusal of section 162 of the Criminal Procedure Code makes it manifest that
the intention of the legislature, in framing section 162 in the manner it did, was to protect the
accused against the use of the statements of witnesses, made before the police during the
investigation, at the trial, presumably on the assumption that the said statements w ere not made
in circumstances inspiring confidence. Both, the section and the proviso, intended to serve
primarily the same purpose i.e., interest of the accused. The section was conceived in an attempt
to find a via media, namely, while it enacts absolute bar against the statement being used for any
purpose whatsoever and it enables the accused to rely upon it for limited purpose of
contradicting a witness in the manner as provided by Article 140 of the Qanun- e-Shahadat Order
by drawing his attention to pa rts of the statement intended for contradictions. It cannot be used
for corroboration of a prosecution or a defence witness or even a Court witness, nor can it be
used for contradicting a defence or a Court witness, nor can it be used for contradicting a defence
or a Court witness by prosecution . Article 140 of Qanun- e-Shahadat Order is controlled by
section 162, Cr.P.C. and the prohibition contained in section 162, Cr.P.C. not be defeated."
The Hon'ble Supreme Court in the case of Muhammad Sarfraz v. t he State, PLD 2013 SC
386, has held as under: --
"The argument that if the prosecution is allowed to confront a witness with his previous
state-ment recorded under section 161, Cr.P.C. during the course of cross -examination after
being declared hostile, it would amount to using it for corroboration rather than contradiction
would be just academic when we are quite clear in our mind that it cannot be used by the
prosecution for the purpose of contradicting the witness. We, therefore, hold that the prosecut ion
cannot be permitted to confront a witness with his previous statement recorded under section 161
of the Cr.P.C. for the purpose of contradicting him even after being declared hostile."
10. After reappraisal of evidence, we find that the prosecution h as failed to prove its case
against the appellant beyond any reasonable doubt. The findings rendered by the trial Court in
the impugned judgment are based on an inadmissible evidence and misappreciation of evidence,
which cannot be sustained.
In view of the above, the instant appeal is accepted, the conviction and sentence recorded
by the trial Court in the impugned judgment are set aside and the appellant Shameer son of Shrab
involved in case F.I.R. No.15 of 2011 with Levies Station, Bhag District Kachhi, is acquitted of
the case. He be released forthwith, if not required in any other case.
HBT/12/Bal Appeal accepted.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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