' Through this revision petition, the order of the Additional District Criminal Court, Pallandri, dated 15-1-1989, has been challenged.
2. The brief facts leading to the filing of this petition are that a challan under section 5 of the Islamic Penal Laws (Enforcement) Act read with section 34, APC was put by the police before the District Criminal Court, Rawalakot, against Mst. Falawat Jan, petitioner and Muhammad Ayub, pro forma- respondent, from where it was transferred to the Additional District Criminal Court, Pallandri, for hearing and disposal. The arguments in the case were heard and the case was fixed for decision by the trial Court but before the judgment could be recorded in it, the Public Prosecutor moved an application on 31-12-88 before the trial Court for summoning the document containing the statement of the petitioner recorded by the Magistrate, Rawalakot, under section 164, Cr.P.C. During the investigation of the case by the police for putting it in evidence on behalf of the prosecution and the said Magistrate for recording his statement on the ground that the decision of the case mostly depends upon the above piece of evidence. The trial Court accepted the above application despite the objection by the petitioner and summoned the above document and the concerned Magistrate as a prosecution witness vide its order, dated 15-1-1989. Hence this revision petition.
3. I have heard the learned counsel for the parties and have also gone through the record of the case. The learned counsel for the petitioner has contended that the trial Court has erred in allowing the prosecution to produce the statement of the petitioner as a prosecution witness. It is further contended by him that the petitioner and the other co-accused are undergoing the trial for the last eight years and thus it was not unjust on the part of the trial Court to pass the impugned order after the arguments in the case had been heard and the case was fixed for pronouncement of judgment. It is further contended that the impugned order amounts to giving the prosecution an opportunity to fill up the lacuna in the case which is not permitted by law.
4. The learned counsel for the State, on the other hand, has contended that the petitioner had confessed her guilt in a statement recorded under section 164, Cr.P.C. And, as such, its production in evidence was essential for the just decision of the case. It is further contended by him that it was due to inadvertence that neither the above statement was filed with the challan nor the Magistrate recording it was named as a prosecution witness in the charge-sheet.
5. I have given my due consideration to the above respective contentions of the learned counsel for the parties, after which I am of the opinion that in the facts and circumstances of the case, the passing of the impugned order was not justified. It is correct that the trial Court had the power under section 540, Cr.P.C. To summon the statement under consideration to be put in evidence against the petitioner and the Magistrate who had recorded it, as a witness provided the above statement is a piece of evidence, but in my view, the just decision of the case does not depend upon the above piece of evidence and as such the summoning of the above document and the witness, was not warranted by law.
6. The prosecution, it appears, intends to tender in evidence the aforesaid statement of the petitioner as confession of her guilt but to me it does not amount to confession of the petitioner of her committing the offence, with which she is charged. A perusal of the copy of the judgment filed with the challan would show that the petitioner nowhere in it had admitted her participation in committing the murder of Nazir Ahmed deceased. Similarly, there is nothing in her above statement which may suggest the implication of Muhammad Ayub, co-accused, in the murder of said deceased. Thus, the statement of the petitioner before the Magistrate sought by the prosecution to be tendered in evidence against the petitioner and the above-named co-accused being not a confessional statement, carries no evidentiary value against the petitioner or the other co-accused and, as such, it cannot be said that it is incriminating evidence against the accused which is necessary to be brought on record to tender it in evidence for the just decision of the case.
It is only the confession which can be used against its maker or the co-accused but not the type of the statement which the petitioner has got recorded under section 164, Cr.P.C. Before the Magistrate during the investigation of the case by the police.
7. Even otherwise, it appears that the prosecution itself was conscious of the lack of the evidentiary value of the above statement of the petitioner, for which reason it did not rely upon it as a piece of evidence against the petitioner and the co-accused by not filing it with the challan or including the Magistrate recording the same in the list of the prosecution witnesses. The trial Court, in the circumstances of the case, ought not, at the behest of the prosecution, to have called for the above statement and summoned the Magistrate as a witness after the conclusion of the trial when the case was only fixed for the pronouncement of the judgment.
' For the foregoing reasons, accepting this revision petition, the order of the Additional District Criminal Court, Pallandri, dated 15-1-1989 is set aside and D he is directed to decide the case in accordance with law.