' KHALIL-UR-REHMAN RAMDAY, J.---In an occurrence which had taken place on 2-7-1985 at about 8- 30 a.m. In the area of village MITRAN WALI within the jurisdiction of Police Station Daska of District Sialkot, four persons, namely, Sharif, who was the real brother of Anwar complainant of this case (not produced as having been murdered before the commencement of the trial); his two CHACHAZADS, namely, Rafiq and Ghulain Rasool and a relative of theirs, namely, Khan Muhammad had been done to death through sixty six injuries inflicted on their bodies with tire-arm weapons, sharp-edged weapons and by blunt weapons. The assailants were also alleged to have taken away, while escaping, a licensed .12 bore gun of Anwar complainant and a licensed .7mm rifle of Ghulam Rasool deceased.
2. The background leading to the occurrence in question was that one Muhammad Hanif had sold 15 acres of the land, where the occurrence in question had taken place, to Irshad etc. Accused which sale was pre-empted by one Akbar P.W. (given-up). Yaqoob (P.W:7) who is a brother of Anwar complainant and of Sharif deceased was the attorney of the said Akbar P.W. Who had pursued this pre-emption case which was decided in favour of the said Akbar P.W. As a result whereof the deceased party had allegedly taken possession of the entire suit land through the requisite legal process and it was on account of this alleged grievance that the accused party had allegedly mounted a murderous assault on the deceased party which had resulted in the above- noticed loss of four lives.
3. Twenty one persons had been nominated in the F.I.R. As being responsible for committing the said crime. As a result of the investigation, nine of the said twenty one accused persons were got discharged and instead eleven other persons were added to the list of the accused persons.
Consequently, challan of the said case was filed against twenty three accused persons. During the course of the statement of Muhammad Yaqoob (P.W.7.) before the trial Court, an application was filed by the complainant to summon the nine above-mentioned discharged accused persons also which application was allowed whereupon the said nine persons were also added to the list.
4. The trial concluded with a judgment dated 30-12-1987 which was questioned in the Lahore High Court. The appeal so filed by the convicts was allowed; the said judgment was set aside and the matter was remanded back to the trial Court for a fresh decision which culminated in a fresh judgment dated 19-1-1989. The said judgment was, however, also set aside in appeal and the matter was once again sent back to the trial Court.
5. In the meantime, five of the accused persons had died while five others had absconded and were declared proclaimed offenders. It was then in these circumstances that trying the available twenty one accused persons, the trial Court, through its third judgment dated. 14-1-1999, convicted four of them, namely, Gulzar alias Saghir, Javed son of Nazar Muhammad, Mushtaq and Ijlees, inter alia, under sections 302/149, P.P.C. And punished each one of them with death on four counts. Three others, .Namely, Javed Iqbal son of Sanaullah; his brother Tariq and one Kifayatullah were also convicted, amongst others, under sections 302/149, P.P.C. But were, however, ordered to suffer sentences of imprisonment for life on the said four counts which sentences were directed to run concurrently and each one of them was also allowed the benefit of the provisions of section 382-B,
6. One of the absconding accused persons, namely, Muhammad Arshad got arrested on 11-5-1991 and pursuant to the trial which followed, lie was also found guilty of the charges as afore-said but was also punished only with sentences of imprisonment as mentioned above.
7. Out of thus a total of eight convicts i.e. The seven above-described, convicted at the earlier trial, and Arshad convicted at a subsequent trial, Arshad did not file any appeal and thus felt contented with his conviction and the punishments awarded to him. The other seven, however, impugned the conviction and punishments recorded against them through two separate appeals filed in the Lahore High Court being Criminal Appeals Nos.108 and 151 of 1999. Since Saghir alias Gulzar who stood punished with death, had died during the pendency of his appeals, therefore, Criminal Appeal No.108 of 1999 abated to his extent and since Javed son of Sanaullah, Tariq and Kifayatullah who stood punished with various sentences of imprisonment, had suffered the said sentences before their appeal could be heard, therefore, the said appeals, to their extent were disposed of as having become infructuous. This left the High Court with Criminal Appeal No.151 of 1999 filed by the remaining three death-convicts, namely, Javed son of Nazar, Mushtaq and Ijlees which was dismissed and pursuant to Murder Reference No.529 of 1999, the sentences of death awarded to each one of them were confirmed.
8. Yaqoob P.W.7. Who was a brother of Sharif deceased as also a brother of Anwar complainant who had since been murdered, approached the High Court through a Revision Petition, seeking sentences of death for the above-mentioned Arshad convict who had got away only with sentences of imprisonment. This petition was allowed and the sentences of imprisonment for life awarded to him under sections 302/149, P.P.C. Were enhanced to sentences of death.
9. The appeal filed by Yaqoob P.W. Questioning the acquittal of the accused persons acquitted by the trial Court was, however, dismissed.
10. It is now only the above-mentioned four convicts who stand punished with death i.e. Arshad, Javed son of Nazar, Mushtaq and Ijlees who are before us through Criminal Appeals Nos.117 of 2008, 118 of 2008 and 120 of 2008.
11. Muhammad Yaqoob P.W. Has also approached us through Criminal Appeal No.119 of 2008, through the leave of this Court, seeking enhancement of the sentences of life imprisonment awarded to Javed son of Sanaullah, Tariq and Kifayatullah and questioning the acquittal recorded in favour of nine of the acquitted persons, namely, Nazir, Nafees, Ghulam Rasool, Irshad, Aslam, Imtiaz, Rafiq, Latif and Nazar son of Fateh Ali. Four out of these acquitted accused persons, namely, Nazir, Rafiq, Latif and Nazar have, however, since died.
12. We have heard the learned counsel for the parties and have also examined the entire record with their assistance.
13. As has been noticed above, the prosecution case was that the deceased party had taken possession of the entire suit-land and it was to dispossess them of the same that the convict-party had come to the suit land, which happens to be the place of the present occurrence and had mounted an assault which had led to the killing of the four deceased persons. As against this, the case of Munir son of Sanaullah accused, through his statement under section 342, Cr.P.C., was that he was still in possession of the land in question; that the four deceased persons along with a number of other persons came to the place of occurrence in the early hours of the day of occurrence after arming themselves with fire-arm weapons; the persons assisting Munir accused snatched the firearm weapons and other ammunition from the complainant party and in the scuffle which ensued between the two groups, the four deceased persons received injuries and died. It thus appears that the happening of the occurrence in question was not denied by the defence and it had also not been denied that the four deceased persons had lost their lives at the alleged place of occurrence and during the course of the same.
14. It is true that Yaqoob (P.W7.) and Liaqat (P.W.8.) were real brothers inter se and were also the real brothers of Sharif deceased, the CHACHAZAD of Rafiq and Ghulam Rasool deceased and relatives of Khan Muhammad deceased but then mere relationship of the witnesses with the victims of an occurrence had never been considered sufficient to discard the testimony of such witnesses unless it could be established that they had some un-impeachable reason to maliciously implicate the accused persons in the commission of a crime.
15. As has been mentioned above, the occurrence in question is admitted between the parties. The question which thus engaged our attention was, firstly, whether the occurrence had taken place in the manner alleged by the prosecution or in the manner claimed by Munir accused i.e. As to who was the aggressor and secondly whether the two eye-witnesses had any believable motive to falsely implicate the four convicts before us.
16. It is on record that the vendees of the land in question were Irshad accused and others who had since been acquitted. If at all it could be said that any could have got generated between the two sides because of the litigation in which the complainant party, through Akbar P.W. (given up), had emerged successful then the target of the animosity, if at all, could have been the said Irshad etc. And not the convicts before us. It may be added that since the complainant party had emerged victorious in the said litigation, therefore, it would not be reasonably believable that they would have any vengeance to wreak against the defeated party. The grievance, if at all, would lie with the ones who had lost the land and not with the ones who had won the same.
17. It was noticed by both the learned Courts that according to the medical evidence it was Yaqoob (P.W.7.) who had carried the two deceased persons i.e. Ghulam kasool and Khan Muhammad to the hospital where both of them, while still alive, had reached within. About two hours of the occurrence as Ghulam Rasool deceased had been medically examined by Dr. Mumtaz (P.W1.) at 11- 00 a.m. And Yaqoob P.W. Was also the one who was the attorney of Akbar P.W. (given up), and who had been pursuing the pre-emption case from the beginning to the end culminating in taking over possession of the same. In the circumstances, his presence at the place of occurrence at the relevant time admitted of no doubt and we also find ourselves in agreement with the trial Court and the appellate Court that he had no motive to falsely implicate the four convict-appellants before us.
18. Sharif deceased was a brother of Yaqoob (P.W.7.) and of the other eye-witness, namely, Liaqat (P.W.8.). We have accepted the presence of Yagoob P.W. At the place of occurrence at the relevant time. The presence of Sharif deceased at the said place at the releYant time stands established through his death during the course of the occurrence in question. Anwar complainant (since murdered and thus not examined at the trial) was also a brother of the said ' P. Ws. And of the said deceased. If these three real brothers who had special interest in the land in question could be present at the place of occurrence at the relevant time then the presence of a fourth brother, namely, i.e. Liaqat (P.W.8.) at the said venue at the said time could also be a reasonably believable claim. Nothing could be brought on record by the defence to establish that this P.W. Had any reason to maliCiously involve the four convicts in the occurrence in question.
19. Agreeing then with the two learned Courts, we hold that both the said eye-witnesses were natural and independent witnesses of the occurrence and no exception could be taken to the reliance placed by the said two learned Courts on their testimony.
20. This being so we hold that th. Findings of guilt recorded against the four appellants were unexceptionable.
21. This then brings us to the question of quantum of punishment deserved by the four appellants in this case. If the prosecution case that it was the deceased party which was in actual physical possession of the entire suit land and it was the appellant party who had aggressed upon. The said land and upon the deceased party to dispossess them of the same be true then the appellants would not deserve any sympathy, mercy or leniency. But if the said claim be not found established in its entirety then the consequences might be a little different. This aspect of the matter has engaged our serious attention.
22. It was alleged by Anwar complainant through the F.I.R. Of the present case that they had taken possession of the entire suit land through the requisite legal process about three weeks prior to the occurrence. Similar was the stance of Yaqoob (P.W.7.) who had claimed through his examination- in-chief that they had taken possession of the entire land, through legal process, from Munir accused, Zafar accused, Irshad accused and Aslam accused about twenty two days prior to the present occurrence. But while under cross-examination, he admitted that:- "It is correct that Mushtaq accused, Nazar accused son of Taj Din, Latif accused, Rafique accused and Imtiaz accused were not the defendants in the pre-emption suit. (Volunteered they were (in) cultivating possession of this land as tenants of Ghulam Rasul accused and Irshad accused) and THEY WERE STILL IN POSSESSION OF THE LAND ON THE DAY OF OCCURRENCE" (Emphasis and underlining has been supplied)
' This Mushtaq mentioned-above is an appellant before us and stands punished with death.
23. Bashir Ahmed appeared at the trial as P.W.3. Besides being the Revenue Patwari Halqa, he also happened to be a close relative of the deceased party as a brother of his wife was married to the sister of Anwar complainant, Sharif deceased and of the two eye-witnesses before us. Despite this relationship with the complainant party, he had admitted at the trial that during his visit to the place of occurrence, he had not found any residential room or any kitchen thereon. He also admitted that on his said visit he had found "CHARI' crop in Khasra No.115. He had gone on to add that the said Khasra No.115 had been in possession of Munir accused since three years before the day of occurrence and that a cattle shed existed in Khasra No.116. Needless to mention here that these were the khasras where the occurrence in question had taken place. He had also admitted that on the day that he visited the place of occurrence after the said occurrence, the said cattle shed, a fodder cutting machine and a water pump were still available in Khasra No.116 which were owned by Munir accused even on the day of his said visit. He also made a very frank admission that when the possession of the suit-land had been delivered to Akbar P.W. (given up), the possession of the said Khasras Nos.115, 116 and of 110 had been delivered but without physical possession because on the day of the delivery of the said possession i.e. On 11-6-1985, "JAWAR" crop was standing there in those fields and actual physical possession of the same could not have been delivered unless the compensation therefor was deposited by the decree holder and that by that day the said compensation had not been deposited by the said Akbar P.W.
24. Muhammad Abdullah appeared at the trial as P.W.16. He was posted as Inspector/S.H.O. Of Police Station Daska merely eight days after the occurrence i.e. On 10-7-1985 and took over the investigation which was still at its initial stages. This is what he had to say with respect to the possession of the complainant party of the land in question on the day of occurrence:--- ".............I came to know during the investigation that the complainant party was duly put in possession in due process of law did not make any further probe into the matter did not inspect any revenue paper in this regard The complainant party stated before me verbally that they are in possession of the suit-land at the time of occurrence. It came to my knowledge from an independent source that the complainant party had taken possession of the suit-land prior to the occurrence. I did not put that independent source as witness in this case."
25. Ghulam Muhammad, DSP was another Police Officer who had investigated this case. Initially; it was on 18-8-1985 i.e. Within about one and a half months of the occurrence that while posted as DSP, Hafizabad, he had been entrusted with the said investigation which he conducted till 23-9- 1985 when the same was transferred to the Crimes Branch. About six months later, the said investigation was once again entrusted to him on 22-3-1986 when he was posted as D.S.P. Nawan Kot in Lahore. And it was on the said date i.e. On 22-3-1986 which was more than eight and a half months after the occurrence that Anwar complainant had, for the first time, produced before him a copy of the report of DHAKL G1RDAWARI, a copy of a warrant issued under Order XXI Rule 35 of the Civil Procedure Code and a copy of KHASRA GIRDAWARI relating to the said land in question and it was the said D.S.P. Who while under examination at the trial as P.W .13 who had placed the said copies on record of the Court as Exh.PV/1, PV/2 and PV/3 along with the memo of taking into possession of the said copies as Exh.PV/4. He admitted, while under cross-examination, that it was while under examination at the trial that he had detached the above-mentioned documents from the police file and had attached the same to the judicial file. He had made a further admission that:-- "I did not verify the genuineness of the documents from the Civil and Revenue authorities."
26. It is then evident from the above portion of the statements of the investigating officers that they had never probed into the all important factum of the complainant party being in actual physical possession of the entire suit land and had also not taken the trouble of verifying the said factum from the concerned revenue authorities. It may be added that the gentleman posted as Halqa Patwari at the relevant time had appeared at the trial as P.W.3. But the prosecution had 'never taken the trouble or the courage to have the above-mentioned DHAKL GIRDAWARI and the KHASRA GIRDAWARI proved on record through him who was not only the concerned but also the competent witness for the said purpose. It is also noticeable that it was, for the first time, on 22-3-1986 i.e. More than eight and a half months after the occurrence that the complainant had produced the said copies before Ghulam Muhamtnad D.S.P. (P.W.13.) who, as was admitted by him, had never inquired into the genuineness of the said copies from the concerned revenue officials. The Manner in which the trial Court had allowed the said documents to come on record was also open to serious exception as the same could neither have been brought on record under section 509 of the Cr.P.C.
Nor were they proved on record in accordance with the provisions of Article 88 and other relevant provisions of Qanun-e-Shahadat Order of 1984. We would, therefore, not find it safe to read the said three documents in evidence.
27. From the above-quoted admissions of the Halqa Patwari (P.W.3.) and of Yagoob (P.W.7.), it stands established that the possession of the entire suit land had not been handed over to Akbar P.W. Or to the complainant party acting through, him. It was specifically admitted by the said Patwari, despite being a close relative of the complainant party, that the actual physical possession of Khasra Nos.110, 115 and 116, which was the venue of occurrence, had not been delivered to Akbar P.W. And consequently- to the complainant party. It had also been admitted by Yagoob (P.W.7.) that Mushtaq appellant and his three other brothers, namely, Nazir accused, Latif accused and Rafiq accused were in possession of a part of the suit land as tenants of Ghulam Rasool accused and Irshad accused even on the day of occurrence.
28. In the circumstances, we do not find it possible for us to hold that on the day of occurrence, the complainant party was in actual physical possession of the entire suit land especially the part of the said land where the occurrence in question had taken place. This being so, we would be in serious doubt about the complainant party being in actual physical possession of the place of occurrence at the relevant time and about the appellant party having mounted a violent and a murderous assault to dispossess them of the same.
29. On account of this doubt which has crept into the matter and which had escaped the notice of the trial Court and also of the High Court, we would find it unsafe to order death for the four appellants before us.
30. Resultantly, the conviction recorded against the four appellants is altered to one under sections 302(b)/149, P.P.C. The sentences of death awarded to the said four appellants are set aside and each of the said four appellants is directed instead to suffer sentences of imprisonment for life on four counts. The said sentences of imprisonment for life are directed to run concurrently with each other and also with any other sentences of imprisonment awarded to each or anyone of them.
31. With these modifications in the impugned judgments, the criminal appeals filed by the four appellants before us, namely, Muhammad Arshad, Javed son of Nazar Muhammad, Mushtaq and Ijlees are disposed off in the said terms.
32. In view of what has been held by us above, there is no question of enhancement of the sentences of imprisonment for life awarded to Javed son of Sanaullah, Tariq and Kifayatullah respondents in Criminal Appeal No.119 of 2008. Four of the respondents in the said criminal appeal filed by Yaqoob P.W. Questioning she acquittal of nine accused persons have since died. No perversity could be shown to us in the reasons which had weighed with the Courts recording acquittal in their favour. We, therefore, find no ground to interfere with the acquittal earned by the five of them. The said Criminal Appeal No.119 of 2008 is, therefore, dismissed.
33. Before we part with this judgment, we would like to make a mention of some illegalities which we have noticed not only in the present trial but which now appear to have become a norm at almost every trial and which were not being noticed even by the High Courts.
34. Ghulam Muhammad, D.S.P. (P.W.13.) was one of the officers who had conducted the investigation in the present case. During the course of his cross-examination, in reply to a question put to him, he deposed as under:-- "It is correct that IN MY INVESTIGATION dated 12-4-1986 I HAVE HELD Muhammad Latif, Muhammad Mushtaq, Imtiaz Ahmed alias Bhola, Kafayat Ullah, Nafees Ahmed, Muhammad Yusaf, Ijlees Ahmad, Jaued Iqbal, Nazar Hussain son of Fateh All AS INNOCENT." (Emphasis and under-lining has been supplied)
' Muhammad Abdullah D.S.P. (P. W.16.) was another investigating officer of this case. To a question put to him, while under cross-examination, his reply was as under:- "It is correct that on 25-7-1985 I FOUND Kifayatullah son of Muhammad Aslam......................................................
AS INNO CENT." (Emphasis and under-lining has been supplied)
35. We feel that the time is now perhaps ripe when we need to remind ourselves of the legal role of the police in the matter of investigations and the law regulating the admissibility and relevancy of evidence which could be recorded at a trial in the said context.
36. It may be stated at the outset that the police had no vested or inherent right to investigate criminal cases. Instances are not lacking in our corpus, juris where the laws creating criminal offences had established their own organizations and agencies to carry out the investigations under those laws. Anti-Narcotics Force Act,1997; The Federal Investigation Agency Act, 1974. The National Accountability Bureau Ordinance, 1999; The Customs Act, 1969; The Drugs Act, 1976 and The West Pakistan Anti-Corruption Establishment Ordinance, 1961 are some of the examples to illustrate the point. There was then nothing stopping the framers of the Code of Criminal Procedure from setting up its own force to investigate the offences mentioned therein but instead of so doing, they considered it advisable to borrow the force already existing under the then Police Act of 1861 and to entrust the said task to its officers and members. Therefore, it needs to be known and understood that the police investigates the Pakistan Penal Code offences not because, it has any powers of its own to do so but only because the Code of Criminal Procedure tasks it and authorizes it to investigate these cases. And the provisions of the said Code then also regulate the powers exercisable by the Police in the said connection and also prescribes the parameters within which the same could be exercised. It may be mentioned here that even under the Cr.P.C. , 'an investigation, in certain situations, could be entrusted to persons other than the police officers including even a private person. Reference may be made to the provisions of section 202 of the said Code.
37. While authorizing the police, inter alia, under sections 156 and 157 of the Cr.P.C. To investigate, no provision was, made in the said Code which expected, authorized or even permitted the police to determine the guilt or innocence of the accused persons which was a domain reserved exclusively for the courts of law. All that it empowered and allowed the police officers to do in the said connection was to hold investigations, And then it defined the scope of the said exercise through section 4(1)(I) of the Cr.P.C. In the following terms:- "Investigation" includes all the proceedings under this Code FOR THE COLLECTION OF EVIDENCE conducted BY A POLICE-OFFICER or BY ANY PERSON (other than a Magistrate) who is authorized by a Magistrate in this behalf:" (Emphasis and underlining has been supplied)
It will thus be noticed, as mentioned above, that the job of a police-officer conducting an investigation was confined only to collection of evidence which evidence, when collected, had to be placed by him before the competent court and it was then the authority and the obligation of this court and only of this court to form an opinion about the guilt or innocence of an accused person and to adjudicate accordingly. Conceding formation of such an opinion to a police-officer would be a grave illegality which could lead to grave injustice and serious resulting consequences.
38. We would, therefore, hold that allowing questions eliciting the opinion of an Investigating Officer about the guilt or innocence of an accused person which opinion he was not legally authorized or even allowed to form, was an illegality which could not be permitted. It may be added that if such- like questions were allowed to be asked and their answers were permitted to become part of the legal evidence and if such pieces of evidence could then be used for acquitting an accused person then why wouldn't they be usable for convicting people. We would shudder even to imagine the disastrous results which could then follow.
39. So much about the Code of Criminal Procedure. Let us now examine what the law of evidence has to say on the subject.
40. As per the provisions of Article 18 of the Qanun-e-Shahadat Order. 1984, it is only about 'FACTS' that evidence could be given in any suit or other proceedings. And according to the provisions of clause (d) of subsection (1) of section 2 of the said ,Order, 'FACT included: "(i) anything, state of things or relation of things CAPABLE of BEING PERCEIVED BY THE SENSES; and
(ii) any mental condition of which any PERSON IS CONSCIOUS." (Emphasis and underlining has been supplied)
A 'FACT is then something which, had actually occurred; which someone knows through actual observation as against what is merely inferred; an assertion or a statement of a thing which actually exists or existed; an actual happening in time and space; an actuality; a reality; a thing done; an act performed; an event, an occurrence or a happening which had actually taken place and even a circumstance capable of being perceived.
41. The rule then is that evidence, at a trial or in other proceedings, could be led only about facts.
But then this rule, like other rules, is not without exceptions and one such exception is envisaged by Articles 59 to 65 of the said Qanun-e-Shaltadat Order which accept even some 'OPINIONS' as evidence. These opinions, however, have to be of persons who are 'EXPERTS' in the relevant fields ,and were admissible only if they pertained to foreign law or to science or art or as to identity of handwriting or finger impressions or about the existence of any general custom or right or about the usages and tenets of any body of men or family or about any religious or charitable foundation or about the meanings of the words or terms used in particular districts or by particular classes of people. And it has been the consistent view of the Courts that an Investigating Officer could not be accepted as an expert nor could the investigation which, as mentioned above, was conductable even by an ordinary private person, could qualify as science or even as art.
42. It is,. Therefore, held that even under the law of evidence, the opinion of an Investigating Officer was not admissible as evidence.
43. It is consequently declared that neither did the Code of Criminal Procedure authorize or allow the Investigating Officers to form opinions about the guilt or innocence of an accused person which was a purely judicial function performable only by a Court of law nor did the Qanune- Shahadat Order recognize opinions of Investigating Officers as admissible in evidence.
44.
44. Some other material has also been noticed by us which was permitted to become a part of the evidence at the present trial. And allowing such-like material to creep into legal evidence was again not confined just to the present trial but had become a routine affair at almost every trial.
45. The above-referred Muhammad Abdullah DSP (P.W.16.) was also asked some more questions while in the witness-box and had replied as under:'-- ' About 70 persons appeared in defence of the above accused persons. I GOT OATH ON HOLY QURAN FROM 70 PERSONS WHILE GOING IN THE MOSQUE ....
' Two persons RIAZ AND BASHIR GAVE OATH ON HOLY QURAN REGARDING ALIBI OF ARSHAD son of Sanaullah while sitting in the Mosque." (Emphasis and underlining has been supplied)
46. Such a part of a witness's statement could not be accepted as legal evidence for more than one reasons. Firstly, because neither the 70 persons first above-mentioned nor Riaz and Bashir mentioned later appeared at the trial to state about the innocence of any of the accused persons.
Therefore, this P.W.16. Stating before the Court what was allegedly stated to him by these persons was HEARSAY and thus disqualified to be treated as legal evidence. And secondly, because there was no provision in any law which empowered an Investigating Officer to examine people on oath.
Examining them on the Holy Qur'an even while sitting in a Mosque would not cure the illegality. It is so because, as has been discussed above in some detail, it is not the function of an investigating officer to find out whether an accused person was or was not guilty of committing the crime of which he was being accused. Such is the task assigned, by law, to the courts and it is the courts alone which then have the authority to examine people on oath including their examination on special oath. It also needs to be known that an investigation is not a judicial proceedings. And as per section 4(1)(m) of the Cr.P.C., it is in judicial proceedings that evidence could be taken on oath.
47. It is true that dispensation of justice is an obligation cast on the courts. But then it also needs to be remembered that the learned members of the Bar are equal partners in the said exercise and the learned Presiding Officers of the courts would not be able to effectively acquit themselves of this obligation without active, dutiful and watchful assistance from the learned Advocates. We would, therefore, in the first instance, advise the learned counsel for the parties, to ensure that nothing is attempted and if attempted, then not allowed by the opposing counsel to become a part of the evidence which is not legally entitled to be a valid part thereof. We would then like to inform the learned Presiding Officers of the courts to note that their job is not to sit as silent spectators watching about being played before them. It is, in the final analysis, their duty to regulate and control the proceeding in their courts and inter alia to check seepage of impurities into the stream of justice. Needless to say that any justice stemming out of illegal evidence would be a seriously flawed justice. They are, therefore, directed to ensure that nothing is allowed to come on record which is not legally allowed to be read as evidence.
48. Copies of this judgment shall be sent to the Registrars of all the High Courts including that of the Federal Shariat Court. The Registrars of the High Court shall transmit the same to all the learned Sessions Judges in their respective provinces for circulation to the learned Presiding Officers of all the courts within their respective jurisdictions. Copies thereof shall also be sent to the Secretary, Ministry of Interior, the Provincial Police Officers of all the Provinces and the I.G.P. Islamabad for their information, adherence and guidance.