Through this quashment petition, petitioner Khalid Mehmood, has called in question the observations of learned Additional Sessions Judge-III/Judge Special Court, Bannu made in Session Case No, 46/2010, decided on 19.12.2011, titled, "The State Vs Pelas Khan etc" whereby a direction for registration of a separate case against the petitioner, has been passed.
2. The resume of the facts forming the background of the instant petition is that, a case F.I.R #- 540, dated, 29.12.2009, under Sections 324/353/279/186/148/149/162/163, P.P.C., was registered at Police Station Cantt Bannu, against Pelas Khan, Mali Jan, Mumtaz Khan and Zabta Khan. According to the contents of the said FIR, Mehrab Khan ASI, along with other police party, was present at "Double road Check-post" on Miran Shah road and had cordoned off the road. At 1825 hours, renowned smuggler Pelas Khan, along with three other companions namely Mumtaz Khan; Zabta Khan and unknown driver, came there in a motor-car, from Miran Shah side, and sought permission of the ASI for passing through two vehicles, one of which was a large Mazda, loaded with foreign cloths, and the other, loaded with foreign Tyres, destined for Bannu, in consideration whereof, heavy illegal gratification, was offered to the ASI, but he did not accept, their offer. After a while, said Pelas Khan, came on the same motorcar, in company of two vehicles, loaded with foreign cloths and tyres and tried to run over the police party, but they escaped by moving aside. Pelas Khan, drove along with the vehicles in a high speed, towards Bannu. The matter was informed through wireless in Police Station and the police party, followed the vehicles and stopped the Mazda bearing Registration No, 138-TKF, loaded with foreign cloth, however, the other vehicle ran away and escaped.
3. Case was registered against the above named accused and after investigation; challan was put in the Court of Judge Special Couit. After closure of the prosecution evidence, statements of the accused were recorded under Sections 342, Cr.P.C., during which all the four accused, in reply to a question, gave a similar answer viz "the Truck taken into custody by the police, was released by SHO Khalid (i,e, Mehmood the petitioner), posted at Police Station Cantt himself against receipt of illegal gratification of Rs, 4,00,000/-". On the basis of similar answers of all the four accused, the learned Judge Special Court, while deciding the case against the accused, also directed registration of a separate case against the petitioner SHO, for receipt of illegal gratification and destroying the evidence.
4. Arguments of the learned counsel for the parties heard and record perused with their valuable assistance.
5. The sole point to be determined in the instant petition is that, whether the statement of accused, recorded under Section 342, Cr.P.C., can be used against any other person. To resolve the proposition, it would be advantageous to re-produce S. 342, Cr.P.C. herein below:- "S. 342. Power to examine the accused.--(1) For the purpose of enabling the accused to explain any circumstances appearing in the evidence against him, the Court may, at any stage of any inquiry or trial without previously warning the accused, put such questions to him as the Court considers necessary, and shall for the purpose aforesaid, question him generally on the case after the witnesses for the prosecution have been examined and before he is called on for his defence.
(2)The accused shall not render himself liable to punishment by refusing to answer such questions or by giving false answers to them; but the Court, may draw such inference for such refusal or answer as it thinks just.
(3)The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answer may tend to show he has committed.
"(4) Except as provided by sub-section (2) of 5.340 no oath shall be administered to the accused.
6. The bare perusal of the Section reveals that this is not the statement of accused, made on oath, rather it is for the Court, to put questions to the accused to explain any circumstance appearing in the evidence against him, at any stage of inquiry or trial. The Court may also question him generally on the case after the witnesses of the prosecution have been examined and before he is called upon for his defence. As per sub-section (3) of S. 342, Cr.P.C. the answers so given by the accused, may be taken into consideration against him. There is nothing in the section, which may tend to show that any answer given by the accused, may be used against his co-accused or any other person. The statement of accused, recorded under Section 342, Cr.P.C., is neither a confession nor it equates with the confession. Rather it is a plea, which may be taken by him in his defence, to explain the evidence, produced against him. It is a plea like S. 265-E, Cr.P.C. during the Sessions Court trial or S. 243, Cr.P.C. during the trial, before the Magistrate, which can only be used against the accused himself and none else. Criminal Procedure Code, is not a substantive law. Rather it is a procedural law, which provides the procedural guidelines for smooth proceedings in the investigation, inquiry and trial. In this regard, only. Qanun-e-Shahadat Order, 1984, is the relevant substantive law, which determines the legal worth and admissibility of any kind of evidence or statements. In view of the provisions of 'Criminal Procedure Code and Qanun-e-Shahadat Order, 1984, the answer so made by the accused, during their examination under Section 342, Cr.P.C., does not come within the ambit of confession, as it is not recorded in accordance with law prescribed therefor. Secondly. the answer given by the accused is exculpatory in nature. They have thrown the whole blame at the door of the petitioner. So, on this score also, it cannot be termed as confession, in which the accused have not taken any responsibility, on their own. In terms of Art. 43 of the Qanun-e-Shahadat Order, 1984, only a proved confession, can be considered, as a circumstantial evidence, against the co-accused. The petitioner is not the co-accused of those who have made these statements. The statement of an accused made under Section 342 Criminal Procedure Code, 1898, may be used for or against him but it cannot be used against any person other than the one who made it.
7. Another important aspect of the case is that relevant question, to which answer was given is not in accordance with the commanding requirement of S. 342, Cr.P.C., as no explanation, with regard to any piece of prosecution evidence, was sought. To simplify the matter, the relevant Question No, 6, and answer thereto, are reproduced herein below:-- Q.6. Where does (had) the Truck gone. Whether it was released by the order of Court or competent authority or otherwise?
A. It was told to me later on by my above named co- accused that the Truck was released by SHO Khalid Mehmood Posted at Police Station Cantt., himself. He had received a gratification of Rs,4,00,000/- for the release of the Truck and the un custom paid goods loaded therein.
The language and tenor of question vividly suggest that it was in the form of cross-examination and not for an explanation, sought of any evidence produced against the accused. The prime object of Section 342, Cr.P.C. is to provide the accused an opportunity, to offer his explanation, about the evidence, so produced against him. It is never ever meant to collect evidence against him or any body else. Nor any part of such statement can be used against any other person. The questions to be put to accused cannot be couched in inquisitive form. Such type of questioning came under consideration before the honourable Calcutta High Court in case titled, "Tahsinuddin Ahmed and others Vs. Empror" AIR 1940, Calcutta 250 and this practice was deprecated.
8. For the reason discussed above, the impugned observations of the learned Trial Court/Judge Special Court, are not only erroneous but in violation of law, as well. Hence, this petition is allowed and the impugned observations of the learned Judge Special Court, rendered in its judgment dated 19.12.2011, against the petitioner, are hereby quashed.