DORAB PATEL, J.----The appellant has keen convicted by an Additional Sessions Judge, Dadu, under section 302, P. P. C. And sentenced to death: He has filed an appeal against this conviction and sentence and the case has also come up to us for confirmation of the death sentence under section 374, Cr. P. C. Therefore I will dispose of tie reference and the appeal by this judgment.
2. According to the prosecution, there were differences between Ghulam Hyder and the appellant on account of the appellant's desire to marry Ghulam Hyder's younger sister. The appellant was a coolie at Kotri Railway Station, whilst Ghulam Hyder lived in a village near Kotri, and on 17-9-1969 Ghulara Hyder went to a hotel near Kotri Railway Station owned by one Ayub, at about 10-30 a.m., the appellant followed him, attacked him with a `danda' and after giving him 5 or 6 danda blows, which. Caused him to fall down, the appellant ran away with his danda. The occurrence was seen by many persons, including P. Ws. Noor Muhammad and Aslam, and after the ' appellant had run away they helped Ghulam Hyder to get up. Ghulam Hyder was bleeding from his nose, but he left immediately to report the occurrence at the Kotri Police Station, which was half a mile away. P. W.
Muhammad Yousif, Head Constable recorded the F.
1. R. In the Station Diary under sections 323 and 504, P. P. C. After recording the F. I. R., P. W. Muhammad Yousif, Head Constable prepared a mashirnama of the injuries on the person of Ghulam Hyder (Exh. 11-1), which was witnessed by P. W.
Safar and another mashir. He then directed Ghulam Hyder to go to the Kotri Dispensary, where Ghulam Hyder was examined by P. W. Dr. Abdul Rashid. As P. W. Dr. Abdul Rashid noticed that Ghulam Hyder was in a serious condition, he directed him to go to the Liaquat Medical Hospital at Hyderabad for treatment but without noting his injuries. Accordingly, Ghulam Hyder went to that Hospital, but meanwhile his father P. W. Haji had learnt of the occurrence and met his son either in the Kotri Dispensary or in the Kotri Hospital. Ghulam Hyder, despite his injuries, was able to tell his father (P. W. Haji) about the occurrence, including the motive for it. P. W. Haji however had his son removed to the Civil Hospital, where he was taken in a taxi, but he died in the Civil Hospital at about 11 a.m. On 19th September 1969. P. W. Muhammad Yousif, Head Constable was informed of his death. He immediately reported it to P. W. Pahalwan Khan, the Additional S. H. O. Of the police station. P. W. Pahalwan Khan transcribed the report recorded earlier in the station diary in the section 154, Cr. P. C. Book as Exh. 12/1, and went to the Civil Hospital to have the post-mortem of the body of the deceased carried out. But as the Civil Hospital refused to do so, he had the dead body removed to the Kotri Hospital where P. W. Dr. Abdul Rashid carried out the post-mortem. P. W.
Pahalwan Khan, the Additional S. H. O. Then proceeded to the wardat and prepared a mashirnama, but as there was no blood, this is not relevant. He then commenced recording the statements of the witnesses, and meanwhile, as he had instructed P. W. Muhammad Yousif, Head Constable to arrest the appellant, P.W. Muhammad Yousif, Head Constable had followed the appellant to Dadu and he arrested the appellant at Dadu Station at 3 p.m. On 19-9-1969. The appellant was brought back to Kotri and the next morning he volunteered to produce the crime weapon which was recovered from him, but as it was not stained with human blood it is not relevant. The appellant then wanted to confess his crime and accordingly on the same day he was taken to ' P. W.
Khursheed Hyder Rizvi, the Civil Judge and First Class Magistrate, Kotri for recording his confession.
P. W. Khursheed Hyder Rizvi, thereafter recorded the appellant's confession (Exh. 12/3), after giving him the usual warnings. In due course, the appellant was challaned as stated and the witnesses mentioned herein were the material witnesses examined by the prosecution in order to prove its case.
3. The appellant's plea in both the Courts was one of total denial and he said that he had been falsely implicated by the police. He also repudiated his judicial confession on the ground that it had been obtained from him by the police. He also denied having produced any danda or lathi and further said with regard to his confession. "The confession alleged to have been made by me before the Magistrate is the reproduction word for word what said to have stated before the police"
The appellant sought to cross-examine both P. W. Khursheed Hyder Rizvi and P. W. Pahalwan Khan on this allegation, but the learned Additional Sessions Judge did not permit the cross--- examination. The appellant however did not produce any evidence in his defence.
4. I have observed that the occurrence was witnessed among others by P. Ws. Noor Mead and Aslam. The learned Additional Sessions Judge was impressed by their evidence, and as P. W. Dr. Abdul Rashid's evidence proved that the deceased had been killed by a weapon such as a latui, the learned Additional Sessions Judge came to the conclusion that the ocular evidence was in the circumstances sufficient to prove the appellant's guilt. He however was not impressed by the evidence of P. W. Haji, the father of the deceased. On the other hand, despite the specific plea advanced by the appellant, he held that his confession was genuine and voluntary. He was also impressed by the dying declaration of the deceased vide the F. I. R. (Exh. 17/1). Accordingly, even though the appellant had retracted his judicial confession, the learned Additional Sessions Judge held that it was amply corroborated by reliable evidence. He accordingly convicted the appellant as stated.
5. I shall first examine the ocular evidence. The prosecution examined P. Ws. Aslam and Noor Muhammad as eye-witnesses of the occurrence and as it was not disputed that they worked at the hotel where the occurrence took place, both these witnesses were natural witnesses. Both of them said that Ghulam had come to the hotel at about 10-30 a.m., that the appellant had followed him and attacked him with a danda 5 or 6 times. Then, accord--ing to both the witnesses Ghulam Hyder fell down, whilst the appellant ran away, but they (the witnesses) helped Ghulam Hyder to get up after which Ghulam Hyder went away unaided by any one. As these witnesses admitted the presence of other persons at the occurrence, Mr. Nooruddin criticised the failure of the prosecution to examine more eye-witnesses, but as the prosecu--petition was not required to examine every possible witness, the only question is whether the evidence of the two witnesses examined is fit to be accepted. `~ Both these witnesses were natural witnesses, no enmity has been alleged or proved against them and they have given evidence fairly, so I see no reason to doubt their statements. But the question which arises is whether this ocular evidence can possibly prove a charge under section 302, P. P. C. It is significant that the witnesses merely stated that the appellant had attacked Ghulam Hyder, but they did not say that he had attacked him on the head or face.
And as they also said that Ghulam Hyder had walked away after the incident without any assistance whatsoever, I can only take the ocular evidence to mean that the appellant had not attacked Ghulam Hyder on the face or the head.
6. I now turn to the medical evidence. P. W. Dr. Abdul Rashid, who carried out the post-mortem, said in his evidence that 8 out of 10 injuries to the deceased appeared to have been caused by a weapon such as a `lathi'. Now although the medical evidence thus supports the prosecution case to the extent that the appellant- had attacked the deceased with a `danda', the further question which arises is whether it supports the prosecution case against the appellant under section 302, P.
P. C.? As the answer to this question depends entirely on the medical evidence, it will be convenient to set out the injuries to the deceased as specified by P. W. Dr. Abdul Rashid. According to the doctor, the deceased had the following 10 injuries: ---
(1) Abraided contusion 3" x 3" on the left side of the neck.
(2) Ecbymosis in the upper eyelid and around the left eye.
(3) Contusion 2" x 2" on the left side of the chest on the lower end.
(4) Contusion 1" x 1" right side of the chest lower end.
(5) Abraided contusion 6" x 2" on the left buttock over lying the iliac chest.
(6) Contused wound 1" x --" on the outer part of left eye brew.
(7) Contused wound 1" x --" and scalp deep on the left parietal region.
(8) Contusion 3" x 2" with swelling on the left temporal region.
(9) Abrasion --" x --" on the left knee.
(10) Abrasion --" x --" on the right knee.
P. W. Dr. Abdul Rashid further pointed out that injury No. 8 was fatal and' said that it was a fracture of the left temporal bone continued to the base of the skull, that this injury had caused inter-cranial haemorrhage due to the rupture of the middle menangil artery and that there was a clot of blood about 50 C. C. In the temporal region. Even a cursory perusal of the medical evidence is sufficient to show that the assailant who had struck the fatal blow had attacked the deceased on his head and face, yet neither P. Ws. Aslam nor Noor Muhammad have said so. Would it then be safe to assume that their evidence is sufficient to prove that it was the appellant who had struck the fatal blow? It is necessary to point out here that according to P. W. Noar Muhammad the deceased did not even become unconscious on, account of the blows inflicted by; the appellant. This is hardly consistent with the injuries described by P. W. Dr. Abdul Rashid. It 'is also significant that although P.
W. Noor Muhammad knew the deceased, neither he nor any one else attempted to look after him.
They merely helped him to get up and then he went away on foot. Could any person, who had received the injuries described by P. W. Dr. Abdul Rashid, have been allowed to walk away on foot?
It is true that the deceased said in his dying declaration, namely the F. I. R. (Exh. 17/1), that the appellant had hit the deceased on the head, "on my left side at temple" as he put it, and because this was a dying declaration the learned Additional Sessions Judge has placed great reliance on it.
But as observed by Sajjad Ahmad, J. In Tawaib Khan v. State (PLD 1970 SC 13) at page 17: "It is difficult to lay down a rigid rule that a person who is injured and is under an apprehension of meeting his death, would suddenly be gifted as if by a magic transformation, with a clean conscience and a purity of mind to shed all the age-old habits and deep-rooted rancours, and enmities. Even, assuming that the pangs of conscience are there at the time to prohibit making of false charges, the question arises whether these pangs are strong enough to fortify him to resist the promptings and persuasions of his relations and others who may be sorrounding him at the time and incite him to support the pattern of the charge which they have chosen to make against the accused persons, whether innocent or guilty? It is for this reason that a close scrutiny of the dying declarations like the statements of interested witnesses becomes absolutely necessary. The maxim 'falsus in uno falsus in omnibus" has all along been discarded by the Courts in this country."
I am in respectful agreement with these observations, and it seems to me, in the circumstances of the case, that the reliance placed by the Sessions Court on the dying declaration was not justifiable.
7. Apart from the fact that the eye-witnesses of the occurrence did not consider the injuries to the deceased to be serious, it is the prosecution case that he walked from the wardat to the police station, the distance being half a mile. Then P. W. Muhammad Yousif, Head Constable recorded his complaint, prepared a mashirnama of the injuries to him (Exh. 11/1) and allowed him to go on foot to the Kotri Hospital or Dispensary which was an--other 2 furlongs. In the first place, I find it impossible to believe that a person who had received the injuries described by P.W.Dr. Abdul Rashid could have walked to the police station reported the F. I. R. And then walked on to the hospital as if he Nad only received minor injuries. Mr. Nasiruddin however referred me to two circumstances in support of the ---prosecution case. The first was the doctor's opinion that a man injured, as the deceased was, could have walked "in very exceptional cases". The second was that the mashir--nama of the injuries to the deceased (Exh. 11/1) corresponded very roughly to the injuries described in the post-mortem report. As to the first circumstance, there is no evidence to show that the deceased could have been a very exceptional person and even P. W. Dr. Abdul Rashid limited himself to saying that he could have walked to the police station. But according, to the prosecution, the deceased had thereafter again gone on foot to the hospital, would he have been allowed to do so if he had been injured as alleged? This cannot but cast doubt on the evidence about the mashirnama of the injuries (Exh. 11/1) including the evidence of P. W.
Muhammad Safar in this respect. Further, as I have pointed out, the ocular evidence is inconsistent with the allegation that the deceased had been bit by the appellant on the head or on the face, and as between this-evidence and the evidence of P.Ws. Muhammad Safar and Muhammad Yousuf Head Constable about the mashirnama of injuries (Exh. 11/1), I have no hesitation in preferring the ocular evidence. There is also another important circumstance to which Mr. Nooruddin drew our attention. P. W. Haji said in his evidence that he had taken his son from the Kotri Hospital or Dispensary to the Civil Hospital for treatment, but the deceased died after having been more than 24 hours at the Civil Hospital, and then, according to P., W. Pahalwan Khan, the Civil Hospital refused to carry out the post-mortem. A strange plea and in view of the mystery surrounding the injuries to the deceased, the prosecution should have produced evidence about his treatment, at the Civil Hospital, his condition at the time of his admission there, and the refusal of the civil hospital to carry out a post-mortem. The prosecution has failed to do so, and this casts further doubt on its case. In my humble opinion, we would therefore not be justi--fied in upholding the conviction of the appellant under section 302, P. P. C. In the absence of other reliable evidence.
8. The only other evidence, according to the Sessions Court, was that of P. W. Haji, the abscondence of the appellant and his judicial confession. Now P.W. Haji merely said that his son told him, and as I cannot believe the dying declaration of the deceased itr is clear that P. W. Haji's evidence has no evidentiary value. Similarly, the mere fact that the appellant was arrested at Dadu does not lead to the conclusion that he had tried to abscond, and as he was not properly questioned on this aspect of the case the so-called abscondence fails to support the prosecution case. Thus, there remains only the judicial confession of the appellant (Exh. 16/1). But as it was retracted, it was the duty of the Sessions Court to satisfy itself that it was genuine and voluntary before relying on it, as it has done.
Now, the learned Additional Sessions Judge held that the appellant's retracted judicial confession was genuine and voluntary solely on the evidence of P. W. Khursheed Hyder Rizvi, Sub-Judge and First Class Magistrate, Kotri, who had recorded that confession. Mr. Nooruddin therefore took us through the evidence of this witness, and if it is fit to be believed, as held by the trial Court, it is clear k, that the confession was genuine and voluntary. However, as I have pointed out earlier, the appellant's plea in his statement under section 342, Cr. P. C. Was that this confession Exh. 16/1, was a reproduction word for word of his statement to the police. If this allegation be true, it would be difficult for any Court to hold that the confession was genuine and voluntary, and the appellant's Advocate had therefore sought to cross-examine both P. Ws. Khursheed Hyder Rizvi and Pahalwan Khan, S. H. O. On this allegation. This is also clear from the cross-examination of these two witnesses, and Mr. Nooruddin's submission was that the learned Advocate was not allowed to cross-examination witnesses because the learned Additional Sessions Judge was of the view that any such cross-examination would be barred by section 162, Cr. P. C. Mr. Nooruddin's submission appears to be correct, as is clear from the Court's note on the cross-examination of P. W. Pahalwan Khan, S. H. O. Thus, the learned counsel for the appellant had put a question to this witness that the judicial confession (Exh. 16/1) "was word by word same as given" by the appellant to the police. But this question was disallowed on the ground that a statement to the police was not admis--sible.
Now, as I have observed, if the appellant's allegation be true it would totally discredit the evidence of P. Ws. Khursheed Hyder Rizvi and Pahalwan Khan, and therefore Mr. Nooruddin submitted that the learned Additional Sessions Judge had misconstrued section 162, Cr. P. C. And I am glad to state that as the submission turned on a question of law Mr. Nasiruddin, who appeared on behalf of the State, very fairly conceded that he could not defend the view taken by the learned Additional Sessions Judge. Both the learned counsel, after taking time, submitted that this section had to be read with section 172, Cr. P. C. And section 159 of the Evidence Act. Mr. Nasiruddin also drew our attention to the rule that although a confession to the police could not be proved against the accused, it could be used by the accused in his favour. Mr. Nasiruddin therefore referred us to the case-law on section 25 of the Evidence Act and we are grateful for his assistance. However, in view of the importance of the question raised, we gave notice to Mr. Hayat Junejo to assist us amicus Puriae, and he also submitted that the learned Additional Sessions Judge had misconstrued section 162, Cr. P. C. Accordingly, as it appeared to us that a miscarriage of justice had occurred, we summoned P. W. Khursheed Hyder Rizvi and Pahalwan Khan for further cross-examination. But before I consider their evidence and the appellant's retracted judicial confession I would first examine the legal position.
9. Section 162, Cr. P. C. After amendments in 1923 and 1942 reads as follows: "162.-(1) No statement made by any person to a police officer in the course of an investigation under this Chapter shall,. If reduced into writing, be signed by the person making it, nor shall ay such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any offence under investiga--petition at the time when such statement was made: Provided that, when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as afore--said, the Court shall on the request of the accused, refer to such writing and direct that the accused be furnished with a copy thereof, in order that any part of such statement, if duly proved, may be used to contradict such witness in the manner provided by section 145 of the Evidence Act, 1872. When any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross---examination.
Provided further that, if the Court is of opinion that any part of any such statement is not relevant to the subject-matter of the inquiry or trial or that its disclosure to the accused is not essential an the interests of iustice and is inexpedient in the public interests it . . . . . . Shall exclude such part from the copy of the statement furnished to the accused.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of section 32, clause (1), of the Evidence Act, 1872 (or to affect the provisions of section 27 of that Act).
I have underlined the provisions inserted into the section by the amendment of 1923, whilst the words in brackets at the end of subsection (2) were added by the amendment of 1941. Turning now to section 172, it states: "172.-(1) Every police-officer, making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him . . . . . And a statement of the circumstances ascertained through his investigation.
(2) Any criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court ; but if they are used by the police- officer who made them, to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of the Evidence Act, 1872, section 161 or section 145, as the case may be shall apply."
Both Mr. Nasiruddin and Mr. Nooruddin submitted that the object of these two sections was to give a qualified privilege to police diaries in the public interest, and therefore in the present case the Sessions Court could have put the diaries in evidence, but only under section 159 of the Evidence Act. Learned counsel referred us in support of this submission, to a Full Bench judgment of the Allahabad High Court in Queen-Empress v. Mannur (I L R 1897 All. 390) and, as before us, the question before that Full Bench was whether an accused could be permitted to rely on his statements to the police. The majority of the learned Judges answered the question in the negative and as the leading judgment is that of the Chief Justice, I would briefly refer to the relevant passages in it. Edge, C. J. Observed at page 395 with reference to police diaries as follows: "The Court may also use the special diary not as evidence of any date, fact or statement referred to in it, but as containing indications of sources and lines of inquiry and as suggesting the names of persons whose evidence may be material for the purpose of doing justice between the Crown and the accused. Should the Court consider that any date, fact or statement referred to in the special diary is or may be material, it cannot legally accept the special diary as evidence in any sense, of such date, fact or statement, and must in law before allowing any date, fact or statement referred to in the special diary to influence its mind, have such date, fact or statement established by legal evidence. It is the Court which is entitled to use the special diary for the purpose of seeking for sources and lines of inquiry . . , . . Neither the accused nor his agent is entitled under section 172 of the Code of Criminal Procedure to see the special diary for any purpose unless it had been used by the Court for enabling the police officer who made it to refresh his memory or for the purpose of contradicting him." The learned Judges then referred to the dangers of allowing the accused free access to police diaries and observed at page 399: "If the special diary or anything which it contains is to be subject to the inspection of any accused person or of his agent, it is hopeless to expect that the Police Officer making the investigation will insert in it information obtained by him, but which, rightly, or wrongly, although honestly, he believes to be injurious to the case for the prosecution, or to be misleading or to be false. Further, so long as Magistrates and Judges allow their minds to be influenced by, and decide cases upon, information contained in special diaries which has not been established by legal evidence and has not been tested and sifted by the examination of witnesses it is hopeless to expect the police officers will resist the temptation to keep out of the special diaries informa--petition which, if inserted in them, would, in the opinion of such Police Officer, be likely to mislead the Magistrate or the Judge. Such information may be suppressed with the honest intention of procuring the conviction of an accused person whom the police officer believes to be guilty, or it may be suppressed with the dishonest intention of shielding a guilty person or procuring the con--viction of an innocent person. The considerations to which I have referred have led me to the conclusion that it is a matter of public policy that the limited privilege and protection from inspection which the Legislature has accorded to special diaries should not be curtailed or encroached upon . . . . ." With respect, these observations do not take into account the provisions of sections 24 to 30 of the Evidence Act, but perhaps under the law, as it then stood and in view of section 2 of the Evidence Act, it was not necessary to consider those provisions. After the repeal of section 2 of the Evidence Act in 1938, that Act cannot be ignored whilst construing section 162 of the Cr. P. C. However, before I turn to the Evidence Act I would like to point out that in accordance with the observations quoted and the plain language of section 172, Cr. P. C. We have examined, with the assistance of the learned counsel, the appellant's statement as recorded in the police diary (Exh. A), and we find that except for one sentence the appellant's judicial confession (Exh. 16/1) is a reproduction, word for word, of his statement in the police diary.
This unfortunate state of affairs cannot but cast doubt on the claim of the prosecution that the retracted judicial confession was voluntary and genuine, and therefore it is very relevant to the appellant's defence. But if, as held by the Allahabad High Court, we can only examine the police diary for seeking "sources and lines of inquiry" and if we cannot put the relevant part of the diary in evidence, then the result in the present case would be that we would have to accept evidence which invited suspicion and to uphold a conviction based on such evidence.
10. Both Mr. Nasiruddin and Mr. Nooruddin were conscious of this difficulty and invited us to hold that the Sessions Court should have allowed the statement from the police diary (Exh. A) to be produced under sec--petition 159 of the Evidence Act, and this submission receives support from the Allahabad case. However, under section 159 a witness "may, while under examination, refresh his memory by referring to any writing made by himself at the time of the transaction concerning which he is questioned------.." Now, in the first place, as the question is of discrediting the evidence, of the Magistrate, and as the statement (Exh. A) was not recorded by him, it is clear that section 159 is of no assistance to the case of the appellant, because it is the Magistrate's evidence which comes in his way. It is true that the section could be invoked against the Investigation Officer, but even then this could be only after he had been questioned about the statement recorded by him in his diary (Exh. A). But as he was not allowed to be questioned in view of section 162, Cr. P. C.
As construed by the Allahabad High Court, I do not see how section 159 can help to resolve the dilemma before us. However, Mr. Nasiruddin referred us to a later judgment of the Allababad High Court reported in Karan Singh v. Emperor (AIR 1928 All. 25). There, the learned Judges affirmed the view of their Court that a police diary could only be used to assist the Court and for the purpose of enabling the defence, under certain circumstances, to contra--dict the witnesses for the Crown.
They, then observed at page 28 "It is the duty of the Judge to bring on record by evidence any material facts that may come to his knowledge and it is for that purpose that he can and should use the diary". These observations were made with reference to a confession on which the appellant wanted to rely, and, as in the present case, the confession had been made to the police.
And to solve the dilemma before them the learned Judges observed that the Sessions Court could have questioned the police officer concerned about the confession. Similarly in Emperor v. Dharam Vir and others (AIR 1933 Lah. 498), a Division Bench of the Lahore High Court followed the Allahabad view in Manfiu's case, but went on to observe that the Court could question a police officer on the basis of his diaries. The difficulty in the present case is that the judicial confession, which may be fatal to the appellant, cannot be discredited merely by questioning the Investi-- gation Officer. It is necessary to bring it on record, if we cannot do so, we might be upholding an unjust conviction. 1 am aware, as observed by Edge, C. J. In Manna's case, that we are bound by the language of the statute. But what is the statute? And further, whilst in Dharam Vir's case, the learned .Fudges of the Lahore High Court followed the Allahabad view in Manna'., case, they, like the learned Judges of the Allahabad High Court, laid great stress on the necessity of preventing a general disclosure of the police diary to the accused. Thus, they observed at page 500: "The subject-matter of police diaries would ordinarily, it appears to me, be privileged under the provisions of section 124, Evidence Act. As regards particular matters they may also be privileged under the provisions of section 125 and also in the circumstances of this particular case under section 123, Evidence Act. Ordinarily speaking the work done by a Police Officer and his report of that work to his superior officer in the investigation of a case would not be relevant for the purposes either of the prosecution or of the defence and exception is made in the case of statement of witnesses, that is persons appearing actually at the trial, by the terms of section 162". 1 agree with these observations, but in my humble opinion the statement of an accused in the police diary cannot be equated, for the purpose of privilege, with, for instance, the portions of the diary containing the police officer's report on investigation, and because privilege is required for the latter it does not mean that it should be extended to the former. But if the statement of the accused is also held to be privileged it would mean that a section enacted for his protection imposes an impediment to his defence.
11. I now turn to the Evidence Act. Mr. Nasiruddin submitted that sections 24 to 30 of this Act, with the wealth of the case-law on them, consti--tute a special law on a special subject, namely, confessions, within the meaning of section 1 (2) of the Criminal Procedure Code. This section reads as follows: --- "(2) It extends to the whole of Pakistan; but in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force."
12. There was a sharp cleavage of opinion between the High Courts on the two questions thus left open by the Judicial Committee. But before I consider the case-law I have to point out that the judgments which I shall consider relate to statements sought to be used against the accused under section 27 of the Evidence Act, whilst the question in the present case is of statements under section 25 of the Evidence Act. However, in my humble opinion, these sections are part of the group of sections relating to confes--sions, and if section 27 is a special law, so is section 25, therefore the distinction is immaterial. However before I examine the case-law it would be convenient to refer first to the chequered history of section 162, Cr. P. C.
13. The first Code of Criminal Procedure was enacted in 1861, and Chapter IX of that Code corresponded to Chapter XIV of the present Code in which section 162 is now to be found. Chapter IX of the 1861 Code contained provisions corresponding both to section 162 of the present Code of Criminal Procedure and sections 25 to 30 of the Evidence Act. Its sections 145 and 147 corresponded to the present section 162 of the Cr. P. C., whilst its sections 148 to 150 corresponded respectively to sections 25 to 27 of the present Evidence Act. There was no ambiguity in this Code, as its sections 145 and 147 were subject to its sections 148 to 159, and the result clearly was that confessions statements were not barred because they had been made to the police. In 1872 the Evidence Act and the Criminal Procedure Code of 1872 were both promulgated on the same day, and the provisions corresponding to sections 148 to 150 of the repealed Code of Criminal Procedure were enacted as sections 25 to 27 of the Evidence Act, whilst sections 145 and 147 of the old Code of Criminal Procedure were retained in the 1872 Code as its sections 119 and 121. However this Criminal Procedure Code of 1872 did not contain any saving provisions corresponding to subsection (2) of section 1 of the present Code of Criminal Procedure, which I have quoted earlier. Another material difference was that section 2 of the Evidence Act stated "but nothing herein contained shall be deemed to affect any provision of any Statute, Act or Regulation in force in any part of British India and not hereby expressly repealed." This was the law until 1882, and in view of section 2 of the Evidence Act and the absence of any saving provision corresponding to section 1 (2) of the present Code of Criminal Procedure, it was obvious that the provisions of the Evidence Act about confessions could not affect the provisions of the Criminal Procedure Code in so far as they barred statements to the police. In 1882 a new Code of Criminal Procedure was enacted, and 'there were several material charges. Sections 119 and 121 of the repealed Code were re-enacted in this Code as section 162. This section 162 was as follows: "No statement, other than a dying declaration, made by any person to a police-officer in the course of an investigation under this Chapter shall, if reduced to writing, be signed by the person making it, or shall be used as evidence against the accused.
Nothing in this section shall be deemed to affect the provisions of section 27 of the Indian Evidence Act, 1872."
Another important change in this Code was that it contained a saving provision corresponding to section 1 (2) of the present Code of Criminal Procedure. However, for the purpose of this appeal, this saving provision in the Code was perhaps not significant because of section 2 of the Evidence Act.
Similarly, the express reference to section 27 of the Evidence Act was another circumstance which indicated that the Evidence Act was subject to the Code.
14. Finally, the present Code of Criminal Procedure was enacted in 1898, and for the purpose of this appeal it is sufficient to state that except for one change its section 162 corresponded to the present section 162 before its amendments in 1923 and 1941. That one change was that the express reference in the repealed statute to section 27 of the Evidence Act was deleted. Finally came the amendment of section in 1923 which I have shown in para. 8, and as section 2 of the Evidence Act was still on the statute book it could well be said that the Evidence Act was subject to the provisions of section 162 of the Code of Criminal Procedure. However section 2 of the Evidence Act was repealed in 1938, and in view of the saving provision about special laws contained in section 1
(2) of the Code of Criminal Procedure, the repeal of section 2 of the Evidence Act is very significant to the point under consideration before us, I will now turn to the case-law.
15. In Biram Sardar and others v. Emperor (AIR 1941 Born. 146), Beaumont, C. J. Observed at page 148: "Most, if not all, of the learned Judges agree that section 27, Evidence Act, is a special law in force at the date of the passing of the amended section 162, and that point seems to me beyond question.
It is a law applicable to a particular subject within section 41, I. P. C. But the view accepted in Lahore and Allahabad is that section 162 amounts to a "specific provision to the contrary" because the pro--hibition therein is expressed in the most clear and emphatic terms. But surely much more than that is required. Section 1 (2) enacts a rule of construction to be applied in the interpretation of the Code. That rule is that where there is a conflict between the Code and a special law, the special law is to prevail in the absence of a specific provision to the contrary. But the provision must be to the contrary of the rule of construction, and not merely of the special law. The section presupposes a conflict, and a conflict is nonetheless a conflict because it is clear for all to see, Reliance has been placed on the use of the word "specific" r;ither than "express".
I am myself inclined to think that "specific provision" is a stronger expression than "express provision" and means a provision clearly expressed. I do not see how a provision arising by implication only can be said to be specific. But if this is going too far, I am clearly of opinion that the language of the Code giving rise to the implication must at any rate be so directly contradictory to the special law that it can be affirmed with certainty that the Legislature intended to override the special law. There is, however, nothing in the language of section 162 which suggests that the Legislature had in mind section 27, Evidence Act. The language of the two sections is quite distinct and to a large extent the respective subject---matters are not identical. Section 162 deals with all statements made to a police officer in the course of an investigation; section 27, Evidence Act, merely deals with information received from a person accused of an offence in the custody of a police officer which leads to a discovery. The two sections only overlap in respect of statements made to a police officer in course of an inquiry which lead to a discovery. It seems to me impossible to hold that section 162 contains a specific provision that section 27, Evidence Act, is not to prevail over it."
16. The Madras, Patna and Nagpur High Courts had taken the same view In re: Subbiah Tevar (AIR 1939 Mad. 856) in Adhik Lai v. Emperor (AIR 1942 Pat. 156) and in Motilal Puransao v. Emperor (AIR 1940 Nag. 66) respectively, and a Division Bench of the Calcutta High Court had taken the same view in Azimuddy v. Emperor (I L R 54 Cal. 237). But I must point out that in this judgment Rankin, J., as he then was, who delivered the judgment of the Court, pointed out that statements by an accused were in a special class by themselves and were therefore not hit by section 162, Cr. P. C.
This view became untenable after the decision of the Judicial Committee in Naryana Swami's case.
However, it appears to have based on the view of Rankin, J. That the provisions in the Evidence Act about confessions constituted a special law, and I may repeat here that the question whether these provisions constitute a special law within the meaning of section 1 (2), Cr. P. C. Had expressly been left open by the Judicial Committee in Narayana Swami's case. However in consequence of the Judicial Committee's observations a later Division Bench of the Calcutta High Court overruled the view of Rankin, J. In Naresh Chandra Das v. Emperor (I L R 1 Cal. 436). Thus, P.I, J. Who wrote the main judgment observed at page 466: "Section 27 of the Evidence Act no doubt makes a special provision for statements leading to discovery. But, as has already been pointed out, this special provision applies to a much wider field.
1t is not limited in its operation, like section 162 of the Code, to a particular investigation. In my opinion, this fact alone should suffice to allow section 162 of the Code to override section 27 of the Evidence Act. To this we may add that section 27 of the Evidence Act containing this general provision, was already there when section 162 of the Code was enacted, providing for a special case of investigation and laying down how much of the fruit of this investigation can be used and for what purposes. In our opinion, the rule leges posteriores priors contrarias abrogant-when two statutes are contary in matter, the latter abrogates the former-will apply to this case, and, to the extent indicated above, section 162 of the Code will abrogate section 27 of the Evidence Act."
Now as the rule leges posteriores priors contrarias abrogant will not be attracted if section 27 of the Evidence Act is a special law the real point for determination is whether the law of confessions as contained in the Evidence Act is a special law. No doubt, as observed by P.I, J. The scope of a statement under section 27 of the Evidence Act is in some ways wider than a statement under section 162 of the Code, but the statements by the accused to the police fall within a much narrower class than statements generally to the police. Bearing in mind also that section 27 of the Evidence Act, which was under consideration in the Calcutta case, is one of a group of sections containing the law of confessions, in my humble opinion, the view of Beaumont, C. J. And of Rankin, J. Is to be preferred to that taken by P.I, J. In the observations quoted.
17. However, the consistent view of the Allahabad High Court has been that section 27 of the Evidence Act, and therefore presumably sections 24 to 30 of that Act, are subject to section 162, Cr.
P. C. (see AIR 1940 All. 263 and AIR 1949 All. 364). The view of the Lahore High Court has not been consistent, but the majority of the Judges in the leading case of Hakam Khuda Yar (AIR 1940 Lah.
129) have taken the same view as the Allahabad High Court and held that the amendment of section 162, Cr. P. C. In 1923 amounted to a pro tanto repeal of section 27 of the Evidence Act. Now this view of the Allahabad High Court and of the majority in Hakam Khuda Yar's case is based on several considerations. The first is the history of section 162 of the Code. The second is that section 27 of the Evidence Act and/or the Evidence Act is not a special law within the meaning of section 1
(2) of the Code, but that on the contrary section 162 is the special law. The third is the rule leges posteriores priors contrarias abrogant. The fourth is that even if or even though section 27 of the Evidence Act is a special law, section 162 of the Code amounts to specific provision to the contrary within the meaning of section 1 (2) of the Code.
18. The first consideration weighed heavily with the learned Judges of the Allahabad High Court, who attached great importance to the deletion of the saving provision about section 27 of the Evidence Act from section 162 of the Code. But whatever be the effect of this deletion before the repeal of section 2 of the Evidence Act, the position was altered by the repeal of that section 2 in 1938, and this was a circumstance to which the attention of the learned Judges was not drawn.
After the repeal of that section 2, if sections 24 to 30 of the Evidence Act are a special law within the meaning of section 1 (2) of the Code, then the deletion or the insertion in section 162 of the Code of references to section 27 of the Evidence Act loses its significance, because provisions constituting a special law do not require to be saved by express provision. And, on the other hand, for the reasons given by Beaumont, C. J. In Biram Sardar's case, I cannot also accept the view of the learned Judges of the Allahabad High Court and of young, C.J. In Hakam Khuda Yar's, case that section 162 of code itself contains specific provisions to the contrary within the meaning of section 1 (2) of the Code, so as to exclude in any event the operation of section 27 of the Evidence Act. And further, if the law about confessions is a special law, then it would not be affected by section 162, so that the amendment of that section long after the Evidence Act, also loses its significance, and in this view of the matter the rule lege posteriores priors contrarias abrogant would not be attracted. Therefore in my humble opinion, the real question in all these cases was whether section 27 of the Evidence Act was a special law.
19. Now the Criminal Procedure Code has not defined the terms special law, but as it has been defined in section 41 of the Penal Code, all the Courts have followed the definition in that section 41.
According to section 41, a special law is a law "applicable to a particular subject," and as section 27 of the Evidence Act dealt with confessions Bea umont, C. J. Was of the view that it was a special law. I am in respectful agreement with that view, but some of the other learned Judges have not taken that view. However,. Except Din Muhammad, J. All the eminent Judges have been of the opinion that a special law was a law relating to a particular subject, according to the normal and grammatical meaning of the words "a particular subject." That some learned Judges thought section 162 of the Criminal Procedure Code was a special law is another matter, but they were almost unanimous on the meaning of a special law. However, only according to Din Muhammad, J.
In Hakam Khuda Yar's case, a special law meant a law "creating offences not contemplated by the Indian Penal Code" (page 148 of the Judgment). This was because according to Din Muhammad, J.
The meaning of section 41 of the Penal Code had to be curtailed by reference to its section 40. With great respect, as there is absolutely no ambiguity about the words `a particular subject" in section 41, I do not see how the plain meaning of these words can be restricted. In any case I find that the view of Din Muhammad, J. Is inconsistent with that of the Supreme Court in Chief Secy., Government of East Pakistan v. Moslemud--din (PLD 1957 S G (Pak.) 1) and therefore it cannot be followed.
20. I have observed earlier that the Lahore High Court's view on the proper construction of section 162 of the Cr. P. C. Has not been consistent and I would now examine this inconsistency. Apart from the fact that two Judges dissented from the view taken in Hakam Khuda Yar's case, I find that a Division Bench of the Lahore High Court took a view in Hasil v. Emperor (AIR 1942 Lah. 37) which was prima facie inconsistent with the view taken by it in Hakam Khuda Yar's case. Now Hasil's case is on all fours with the present case, because, unlike' Hakam Khuda Yar's case, the appellant Hasil wanted to rely on his own statement to the police. As in the present case he had not been allowed to do so by the Sessions Court, and the question before the learned Judges was whether the view of the Sessions Court was erroneous. In allowing the appeal the learned Judges observed at page 39 "No reported decision which is exactly to the point has been brought to our notice . . . . . . . Even so it appears to us from the plain wording of the section that the prohibition contained in section 25 of the Evidence Act can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence. In cases of this kind, when two versions of the same incident are being put forward, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible oppor--tunity, and we do not think that it can ever have been the intention of the Legislature that an accused person should be deprived of the right to make use of such a statement, merely because to a certain extent it goes against him." I am in respectful agreement with these observations, but the view taken by the learned Judges was not unusual as observed by them. Almost a hundred years ago, this view was taken by the Bombay High Court in Imperatrix v.
Pitambar Jina (I L R 2 Bom. 61) and by Rankin, J. In the Calcutta case, to which I have referred. The same view has been taken by the Rangoon High Court in Nga Po Chon v. King-Emperor (I L R 4 Rang. 356). Thus, the view of the learned Judges in Hasil's case is amply supported by authority.
However is it consistent with their view in Hakam Khuda Yar's case? And it is significant that Young, C. J. Was a party to the decisions in both the cases, therefore he could not have forgotten the view taken by him in Hakam Khuda Yar's case. It is true that unlike Hakanz Khuda Yar's case, the question in Hasil's case was whether the accused could rely for his defence on his statement to the police.
But section 162 of the Code does not draw any distinction between statements by the accused on which the prosecution wished to rely and statements on which the accused himself wants to rely.
Therefore, in my humble opinion, the view of the Lahore High Court in the two judgments cannot be reconciled. I am aware that after the Judicial Committee's observations in Naryana Swami's case it cannot even be argued that statements by the accused do not fall within the ambit of section 162 of the Code. But the authorities on the construc--petition of section 25 of the Evidence Act, to which I have referred, are sufficient to show that the Courts have evolved a rule so to construe the section that a provision intended to protect the accused is not used against him. Any other rule would, in my humble opinion, be inconsistent with the golden thread which runs through the entire web of our criminal jurisprudence, that the burden of proving the guilt of the accused is always on the prosecution. But I have referred to this line of authorities only to show that the Courts have, for a long time, treated the statements of the accused as a special subject. Now on the question as to what is a special law vis-a-vis section 162 of the Cr. P. C. The difference between section 25 and section 27 of the Evidence Act is immaterial. Therefore, in my humble opinion, on this ground also, the view of Beaumont, C. J. In Biram Sardar's care is the correct law and is to be preferred to that of the Allahabad High Court and of the Lahore High Court in Hakam Khuda Yar's case. I would further observe here that as the question in this appeal is of the admissibility of a statement falling under section 25 of the Evidence Act, I am supported in my conclusion even by the view of Lahore High Court in Hasil's case. In all the circumstances discussed I am satisfied that the appellant's statement in the police diary (Exh.JA) is not hit by section 162 of the Cr. P. C.
21. Finally, as I have shown earlier in para. 8, section 162 was amended again in 1941 after the judgments of the Allahabad and Lahore High Courts in Baldeo acid others v. Emperor (AIR 1940 All.
263) and in Hakam;,'Khuda Yar v. Emperor (AIR 1940 Lah. 129). But in my humble opinion this amendment was only in order to remove doubts that might have been created by these judgments, and I do not think it affects the conclusion, which I have reached.
22. Finally, Mr. Junejo, who has been of great assistance to us, drew our attention to our powers under section 375 of the Criminal Procedure Code. Subsection (1) of section 375 is relevant and it reads as follows: --- "375.-(1) If when such proceedings are submitted the High Court thinks that a further inquiry should be made into, or additional evidence taken upon, any point bearing upon the guilt or innocence of the convicted persons, it may make such inquiry or take such evidence itself, or direct it to be made or taken by the Court of Session."
This is an extraordinary power conferred on this Court in order to enable it to do justice and it is the special provision regulating our obligation to do justice. I am therefore satisfied that our powers under it are untrammelled by the earlier section, namely section 162.
23. I now turn to section 165 of the Evidence Act to which also Mr. Junejo referred us. This section reads as follows: "165.-The Judge may, in order to discover or to obtain proper proof of relevant, facts, ask any question he pleases, in any form, at any time of any witness, or of the parties about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross-examine any witness 'upon any answer given in reply to any such question Provided that the judgment must be based upon facts declared by this Act to be relevant, and duly proved Provided also that this section shall not authorise any Judge to compel any witness to answer any question or to produce any document which such witness would be entitled to refuse to answer or produce under sections 121 to 131, both inclusive, if the question were asked or the document were called for by the adverse party; nor shall the Judge ask any question which it would be improper for any other person to ask under section 148 or 149; nor shall he dispense with primary evidence of any document, except in the cases hereinbefore excepted."
The section manifests the importance attached by the Legislature to the duty imposed on Courts to do justice; and on a plain reading of the section it is clear that this duty is imposed on all Courts, civil and criminal; that is further clarified by section 166. Therefore, in my humble opinion, these provisions constitute the special law regulating the duty of all Courts to do justice, and perhaps this obligation has been imposed by the Legislature because of its knowledge of the difficulties confronting the accused in their defence in remote areas of the country. And, as rightly submitted by Mr. Junejo, it cannot also be argued that section 162 of the Cr. P. C. Contains "any specific provision to the contrary" within the meaning of section 1(2) of that Code, therefore I am satisfied that Court's power under this section are not affected by section 162 of the Criminal Procedure Code, and that was also the view of the Patna High Court in Darpan Potdarin v. Emperor (AIR 1938 Pat. 153) and of the Calcutta High Courtin Emperor v. Lai Mia and another (AIR 1943 Cal. 521). I must however point out that Din Muhammad, J. Had criticised this view in Hakam Khuda Yar's case. But this was solely on the basis of judgments reported in I L R 58 Cal. 1009 and AIR 1926 Cal.
147. I have therefore examined these Calcutta cases and the view taken by the learned Judges in these cases was that section 165 of the Evidence Act was subject to section 162 of the Criminal Procedure Code because of section 2 of the Evidence Act. But I have pointed out section 2 of the Evidence Act was repealed in 1938 and as this completely altered the situation, in my humble opinion, the later view of the Calcutta High Court in AIR 1943 Cal. 521 is to be preferred. Accordingly, I have no doubt that the Sessions Court could and should have allowed the proper cross-examination of the prosecution witnesses as sought by the appellant, and on this ground also the view of the learned Sessions Judge is erroneous.
24.. We therefore permitted the cross-examination both of the Magis--trate, who had recorded the appellant's retracted judicial confession (Exh. 16/1), and of the Investigation Officer P. W. Pahalwan .Khan, S. H. O. And we are very disturbed by the result. I would not have been surprised, If the appellant's retracted judicial confession had been similar to his statement to the police, but here it is a case of much more than similarity. The two statements are absolutely identical, but for the addition of a few words in the retracted judicial confession. I regret to say that this extraordinary similarity between the two statements can only lead to the conclusion that one was a copy of the other, and Mr. Nooruddin, learned counsel for the appellant, submitted that the retracted judicial confession (Exh. 16/1) had been copied from his statement to the police (Exh. A). The learned Magistrate was cross-examined on this allegation and he vehemently denied it. But on the other hand P. W. Pahalwan Khan, S. H. O. Vehemently repudiated the suggestion of Mr. Nasiruddin that he had copied the statement in the police diary from the appellant's retracted judicial confession and predated it. It is possible that the truth might have been ascertained if the Sessions Court had permitted the proper examination of these two witnesses, as all necessary witnesses were then available. As we can hardly re-open the case now it is not possible to decide whether the retracted judicial confession was copied from the appellant's statement or vice versa, nor is it necessary to decide this controversy in view of the ocular evidence.
25. I have held that the evidence of P. Ws. Aslam and Noor Muhammad is reliable. But that evidence establishes that the appellant had followed the deceased into a hotel and made an unprovoked attack on him by giving him several lathi blows. Now this evidence is totally inconsistent with the appellants retracted judicial confession (Exh. 16/1). According to that confession, the deceased had suggested to the appellant that he could marry his daughter provided he gave Rs. 500 for the marriage expenses. The appellant had therefore given the deceased Rs. 200, but as the deceased kept him on false hopes, after a month, he asked the deceased to return the money lent to him.
Then, according to the statement, the deceased abused him and tried to assault him, therefore "I in my self-defence struck a lathi which hit him on his arm and next on his back. Then some persons intervened and averted the fight." As this so-called confession is exculpatory, I am at a loss to understand how the Sessions Court relied upon it for the purpose of convicting the appellant. But as it is exculpatory, the question is whether it is to be preferred to the ocular evidence. Now, although according to this alleged statement of the appellant other persons had intervened and stopped the fight, the appellant had not named these other persons in his confession. And similarly his statement that he had hit the deceased on his arm and on his back is completely inconsistent with P. W. Dr. Abdul Rashid's evidence about the injuries to the deceased, therefore I am not impressed by this alleged confession and Mr. Nooruddin submitted that it was neither genuine nor voluntary. But even if it is genuine and voluntary it does not further the appellants case because of the ocular evidence. In these circumstances, it is unnecessary to go into the further question whether this confession was copied from the statement (Exh. "A") or whether that statement was copied from the confession.
26. The result is that the only evidence against the appellant is of P. Ws. Aslam and Noor Muhammad, which only proves that the appellant had made an violent and unprovoked attack on the deceased. This evidence does not prove that the appellant had struck the deceased the fatal blow on his head, and this means that the appellant's conviction and sentence under section 302, P. P. C. Are illegal. I therefore set aside his conviction and sentence and instead I convict him under section 325, P. P. C. And sentence him to 4 years' R. I.
ABDUL HAYEE KURESHI, J.-----I have had the advantage of reading the judg--ment of my learned brother Dorab Patel, J. And I must state that I agree with him entirely. However, since questions relating to use of Police Diaries and also the use of confessional statement made by the accused to the Police, at the instance of the accused himself; are involved, I would wish to add a few paragraphs of my own. It is not necessary to repeat the facts of the case and in that regard all I need to say that the report was lodged on 17-9-1969 and the appellant was arrested by S. I. P.
Pehalwan Khan on 19-9-1969. The appellant made a statement which was recorded by the Police Officer and incorporated in the Police Diary maintained under section 172, Cr. P. C. On the next day the appellant was sent to Mr. Khurshid Haider Rizvi, Civil Judge and First Class Magistrate for recording of confession under section 164, Cr. P. C. This confession was recorded on 20-9-1969. At the trial before the Sessions Judge Mr. Khurshid Haider was cross-examined and the question was whether the confession recorded by the Magistrate was in the same words as the statement of the appellant before the Police. The Magistrate stated that he did not know what statement the appellant had made before the Police and for that reason he could not say whether the statement made by the appellant in his confession was the same as the one given by him before the Police.
S. I. P. Pahalwan Khan was also cross-examined in the same context and the following question was asked from him:- "Q. Did you mark from the confessional statement given by accused Ghulam Hussain before the Civil Judge and F. C. M., Kotri was word by word same as given by him to the Police?"
This question was disallowed by the Sessions Judge on the ground that the two documents were different and that the statement of an accused person before the Police is not admissible.
"According to me the learned defence counsel cannot press this point in service because the statement made by the accused before the Police cannot be looked into for any legal purpose as it is specifically made inadmissible in evidence. Moreover, the learned defence counsel has not brought out anything on record showing that the learned Magis--trate was influenced by contents of the statement of the accused before the Police or he had questioned him on those lines while recording the confession. On the contrary the learned Magistrate denied to have looked into the statement of the accused given by him before the Police. Thus this contention also according to me has got no substance."
2. At the time of hearing of this appeal, the learned Advocate for the appellant made a grievance on that score. He invited our attention to the judicial confession and the statement of the appellant in the Police Diary. Since the point was of a nature that required inquiry, we examined both the statements in juxtaposition. Our examination revealed that the two state--ments were word for word, phrase for phrase, sentence for sentence the same except that one sentence had been added in the judicial confession. Since the learned Sessions Judge was of the view that he could not look into the Police statement and, therefore, such a genuine grievance of the appellant could not be ventilated in the Court, we started consideration of this matter with all anxiety. We gave time to the learned counsel to prepare themselves on this aspect of law and also requested Mr. Muhammad Hayat Junejo to assist us. We are grateful to the learned counsel of the appellant, Mr. S. Nasiruddin, the State counsel and Mr. Muhammad Hayat Junejo who have assisted us in this case.
3. The question that arises can be divided in two parts. The first is whether the Police Diary maintained under section 172, Cr. P. C. Could at all be used during the trial and if so, to what extent.
The next point is whether the statement made by the appellant to the Police, which has been incorporated in the Diary could be taken into consideration by the Court in spite of the same being of confessional nature and if so to what extent and for what purpose. Section 172, Cr. P. C. Reads as follows:- "Section 172.-(1) Every Police-officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time on which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.
(2) Any Criminal Court may send for the police-diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police- officer who made them, to refresh his memory or if the Court uses them for the purpose of contradicting such police Officer, the provisions of the Evidence Act, 1872, section 161 or section 145 as the case may be, shall apply."
This provision of law has remained in the same shape and form in which it was originally enacted and has not undergone any legislative vicissitudes as section 162, Cr. P. C. However, a view seems to have prevailed in the Indo-Pakistan sub-continent that the Police Diaries main--tained under section 172, Cr. P. C. Are privileged documents and, therefore, could not be looked into. That has been the view in some old cases. However in the case of Dal Singh v. Emperor (AIR 1917 P C 25), reference was made to an earlier case of Queen-Empress v. Mannu ((1897) 19 All. 390) and it was stated by Viscount Haldane as follows:- "To use the diary for the purpose they did was to contravene the rule laid down in Queen-Empress v. Mannu, where a full Court pointed out that such a diary may be used to assist the Court which means of further concluding points which need clearing up, and Which are material for the purpose of doing justice between the Crown and the accused, but not as containing entries which can by themselves be taken to be evidence of any date, fact or statement contained in the diary.
The police officer who made the entry may be confronted with it but not any other witness."
Even in Mannu's case which was referred to by the Judicial Committee in AIR 1917 P C 125, it was stated as follows:- "The special diary may be used by the Court to assist it in the inquiry or trial by suggesting means of further elucidating points which need clearing up and which are material for the purpose of doing justice between the Crown and the accused; but entries in the special diary cannot by themselves be taken as evidence of any date, fact or state--ment therein contained."
The point came up again for consideration before a Division Bench of Calcutta High Court consisting of Khundkar and Sen, JJ., in the case of Emperor v. Lal Mian (AIR 1943 Cal. 521). In that case the question was whether a Court can look into Police statements and use the same despite the provisions of section 162, Cr. P. C. The learned Judges were of the view that there was nothing in section 162, Cr: P. C., which prevents a Judge from looking into the Police diaries suo motu and the Judge using a statement of the person for the purpose of contradicting such person when he comes to give evidence. In short even in this case tile learned Judges held that a Court could look into Police-diaries. The same learned Judge dealt with the same position in the case against one Ahmed Mian and in that case which is reported in AIR 1944 Cal. 243, the learned Judges once again relied on the case of Mannu and Dal Singh and observed as follows:- "It is very true that a diary kept under section 172 cannot in any circum--stances be used as evidence of any date, fact or statement contained therein, but I am of the opinion that it can be used for the purpose of assisting the Court in the enquiry or trial by enabling the Court to discover means for further elucidation of points which need clearing up before justice can be done."
"Where it is alleged that the statement made by the witness in Court was not made before the police officer, it is useless to refer to the record in the case diary at all, for what is recorded in the case diary is not intended to be a complete record of what a witness tells the police officer. It is only a -resume of the statement, made by the police to facilitate their investigation. The only way to prove that the statement made in Court was not made to the police officer is to ask the police officer himself when he is in the witness-box."
"But in prevailing conditions, the defending Advocate is often completely in the dark and is far from sure what exactly his client has told the police in the first instance. An accused person in the state of the law as it stands has no right `per se' to obtain copies of his statement to the police until the law is amended. But we can see no impediment to the committing Court permitting in its discretion and in appropriate cases defending counsel at his request to look into the case diary to verify what the accused told the police as recorded there. Before formulating his defence, under section 172(2) to aid the Court in the inquiry or trial. It must be made clear that such a permission cannot be claimed by the accused as a matter of right. It is of comparatively little use for defending counsel being permitted by the Sessions Judge to look into the case diary at a belated stage of the trial only when the learned Judge himself on a perusal of it finds something of great use to the accused. It is necessary for responsible defence from the start that in cases such as the present defending counsel should know what the accused told the Police in the first instance."
The Lahore High Court also has expressed its views in the matter of use of Police-Diaries. In the case of Emperor v. Dharam Vir a Division Bench consisting of Dalip Singh and Monroe, JJ., referred to Mannu's case and expressed as follows:- "I can see is the sole exception. Section 172 no doubt confers an absolute right on the Court to inspect all police diaries in connection with the investigation of an offence which is under inquiry or trial before it, but this course is permitted to the Court and to the Court alone. It is not possible to hold that the Court can delegate its duties in this matter to the counsel for the defence. The reasons given in Queen-Empress v. Mannu, are to my mind conclusive on the point and it would be against public policy to allow a wholesale disclosure to the accused of all that happened in a particular investigation of a particular offence or of connected offences. If at any time the Court itself on inspection of the diaries considers that certain sources of inquiry are revealed by those diaries or that a certain police officer should disclose further to the Court the steps taken by him or if it becomes necessary to contradict the said police officer, the Court may use the diaries for these purposes, but until the Court has done so the defence are not entitled to inspect those diaries."
Supreme Court of India has also considered the question of use of Police Diaries in the case Kabib Muhammad v. State of Hyderabad (AIR 1954 SC 51), and Mahajan, J., expressed the opinion of the Supreme Court as follows:- "Section 172 provides that any criminal Court may send for the police diaries of a case under inquiry or trial in such Court and may use such diaries, not as evidence in the case `but to aid it in such inquiry or trial'. It seems to us that the learned Judge was in error in making use of the police diaries at all in his judgment and in seeking confirmation of his opinion on the question or appreciation of evidence from statements contained in those diaries. The only proper use be could make of these diaries was the one allowed by section 172, Cr. P. C., i.e. During the trial he could get assistance from them by suggesting means of further elucidating points which needed clearing up and which might "be material for the purpose of doing justice between the State and the accused. This he did not do because the diaries were not before him."
A Division Bench of the Sind Chief Court in the case of Haji Imam Bux V. Crown (PLD 1956 Sind 262), also made the same observation in regard to the use of Police-- Diaries although dealing with some transfer applications. In that case it was served by O'Sullivan, J., as follows:- "The purpose for which a criminal Court may use a Police diary is laid down in section 172, Cr. P. C.
Contents of a police diary are not evidence but are to be used as aids to the enquiry or trial as for instance to assist the Court in questioning witnesses and elucidating by legal evidence points which need clearing up."
4. A few more cases could also be referred to in this context. The same are Afaftoadl v. King- Emperor (AIR 1927 Cal. 644) and AIR 1918 Pat. 599. The upshot of the entire argument in my humble view is that even though the statement of Ghulam 1-Tussain appellant could not be considered to be a statement under section 162, Cr. P. C., because of the reason of the same being a confessional statement, the incorporation of this statement in the diary under section 172, Cr. P. C. Did not in the least make it a protected or privileged document. The Court has wide powers to call for the polices diary and refer to the same. In fact section 172, Cr. P. C.
Reserves such a power to the Court. The only question is with regard to the limitations as tothe use of police diaries by the Court. No doubt the police diaries are not evidence and cannot be used as evidence, but the same call be used for aid in an inquiry or trial. The question then turns on the interpretation of the word aid. To aid means to help, to assist. 'The Court can look tot the Police diaries for the purpose of helping it to arrive at correct cold elusions. In suitable cases the Court can direct the police officer to refer' to the police diaries and give answers. I would say that in proper cases`.' 0iis power has to be exercised by the Court at the instance or request of the accused. There may be cases where the interest of justice would require aid of the police diaries and in such case the same powers should necessarily he exercised by the Court. A glaring instance is tile present case where it is alleged that the entire police statement of the appellant in the diary was virtually reproduced in the judicial confession. Situations such as this could not be overlooked and the interest of justice and the duty of Court would require proper use of the diary in these circumstances.
5. Under these circumstances and faced with this situation in this case we had summoned the Magistrate as well as the Police Officer and we found that the allegations of the appellant appeared substantial.
6. The next question that has engaged our attention is whether tile statement of appellant being of a confessional nature and having been made to a Police Officer could the same be used for the purpose of helping t f : e accused.
7. The provisions in law that prohibit the reception of confession made by an accused person to police officer are contained in section 25 of the Evidence Act. The provisions relating to confession as contained in the criminal Procedure Code are only in regard to recording of the same. Likewise the bar contained in section 162, Cr. P. C. Is in regard to statement of persons examined by the police during investigation. On the other hand section 25 of the Evidence Act reads as follows:- "No confession made to a police officer shall be proved as against a person accused of any offence."
The word `against' appearing in the above section is very significant. Further, sections 24 to 30 of the Evidence Act are in the nature of a special law qua the Code of Criminal Procedure Code. The point has been dealt with in the judgment of my learned brother and it is not necessary for me to consider it separately. I entirely agree with the opinion of my learned brother.
8. The scope and import of section 25 of the Evidence Act has repeatedly been considered by judicial authorities. The first case is the case of Dal Singh v. King-Emperor. In that case the accused was tried for murder. He had made a report to the police stating that he had been beaten by the deceased and his brother. At the trial the accused wanted to rely oil this report and the judicial committee opined that statement of the accused not being of a confessional nature was clearly admissible.
Again in the case of Pakala Naraiyan Swami v. Emperor, the same question came up for consideration and their Lordships considered the combined scope of section 162, Cr. P. C. And section 25 of the Evidence Act.
Some decisions of Indian Courts were considered and discussed by their Lordships and it was observed by them as follows--- "As the point was argued however and as there seems to have been some, discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self---exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence., An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession."
The aforesaid two decisions clearly removed the complete bar on the statement of the accused. It would appear that their Lordships of the Privy Council did not intend to completely shut out statement of a confessional nature made by persons to the police during investigation. In fact the words of section 25 forbid proof of a confession against the accused but in proper cases if an accused person would wish to rely on his own statement either for the purpose of negativing the allegation or for mitigation of sentence there does not appear to be any reason for excluding such statement because in such case a confession is not being used against the accused, but perhaps in his favour.
9. The point came up for consideration with more pointed reference in the case of Hasil v. Emperor.
In that case the accused had been sentenced to death and during the investigation he had made a statement of a confessional nature to the police officer investigating that case. The accused made a request to the Sessions Judge to admit the evidence of confession, but the request was refused. The point was taken in the High Court and was sought to be resisted on the ground of prohibition contained in section 25 of the Evidence Act. The learned Judges expressed that there was no reported decision exactly on the point. In fact that was right because even the Privy Council cases referred to by me concern statement of an exculpatory nature, but the learned Judges of Lahore High Court clearly expressed the opinion that a confessional statement could be relied on by the accused for his benefit. The learned Judges expressed themselves as follows:- "Even so, it appears to us from the plain wording of the section that the prohibition contained in section 25 can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence. In cases of this kind, when two versions of the same incident are being put forward, it is often of the greatest importance for an accused to be able to show that his own explanation was put forward at the earliest possible opportunity, and we do not think that it can ever have been the intention of the Legislature that an accused person should be deprived of the right to make use of such statement, merely because to a certain extent it goes against him."
The question again came up for consideration in the case of Aziz Ahmed v. The State (PLD 1960 Rar. 272). In that case the appellant after committing the murder of his wife lodged the F. I. R. In the said report he stated that his wife and his sister-in-law had been taunting him and abusing him, telling him that he was impotent and should wear bangles, but on which he lost his temper and committed the murder of his wife. No doubt the. F. I. R. Lodged by the accused was of a confessional nature and the question that then arose was whether section 25, Evidence Act completely barred that statement. The learned Judges relied on Hasil's case and used the F.
1. R.
Lodged by the accused in his favour and consequently reduced the sentence from death to transportation. The reasons given by learned Judges were that section 25, Evidence Act only created a prohibition to the use of the statement against an accused, but if an accused himself wished to rely on the same for the purpose of his conviction or sentence, the bar under section 25, Evidence Act,, is not effective.
10. The upshot of the entire argument then is that section 25 of the Evidence Act only prohibits reception of confession against the accused but there may be cases where .The accused may be relying on his own confession. No doubt in Hasil's case the confession was relied on only for the purpose of proving circumstances in mitigation, but on that same process of reasoning I cannot see why a confession made by an accused to police cannot be relied on by the accused for the purpose of showing that his subsequent judicial confession was not voluntary, or not made by him or was made by him p under such circumstances as should result in exclusion of the confession from consideration. After all if a Court comes to believe that a subsequent judicial confession is almost a verbatim reproduction of earlier confessional statement made to the Police, the Court would be very reluctant to act on the judicial confession. In the present case the subsequent judicial confession is, barring a single sentence, a verbatim reproduction of the earlier confessional statement of the Police. The inference is inescapable that the latter confession is not admissible. In the case of Ram Baran Shukla v. Emperor (AIR 1933 All. 356), the accused at the time of recording of his confession produced before the Magistrate a written and signed statement which was acted upon by the Magistrate who appended a certificate stating "it was written by me and read over to the person making it and it was admitted by him to be correct--": Young, J. (as he then was), dealt with the situation and held that such a confession could not be considered to have been written by Magistrate because the provisions of section .164, Cr. P. C. Have to be construed strictly. The confession was ruled out of consideration.
Even in this case I have no reason whatsoever to doubt that the allegation of appellant that the confessional statement made by the appellant to the police was before the Magistrate at the time of recording the confession appears well-founded. Such a circumstance can be proved by a comparison of the two statements. The confessional statement of the accused to the Police, to that extent, is not being used against the accused so as to invite the bar of section 25, Evidence Act. It has in fact been used in favour of the appellant. Such -a mode has received approval of the Lahore High Court as well as West Pakistan High Court, in the case of Hasil and Aziz Ahmed.
We have therefore, looked into the confessional statement of the accused made to the Police.
11. With regard to the conclusion, I have stated that I agree with my learned brother Dorab Patel, J.
K. B. A.