' This is an application asking for bail after arrest.
2. The matter relates to F.I.R. No,500 lodged on 3-10-2000 with Police Station Taxila, District Rawalpindi, under section 9-C of the Control of Narcotic Substances Act.
3. According to the F.I.R., at about 11 p.m. When a passenger bus coming from Peshawar was stopped, the petitioner who was present in the bus, was found holding a bag. She was suspected.
When her bag was searched, two kilograms of Charas was recovered from her bag. Out of which 200 grams of Charas was forwarded for chemical examination.
4. The petitioner is stated to be in the lock-up since 3-10-2000.
5. At the relevant time, the petitioner was in a family way. She moved an application on 20-11-2000 for her bail on this ground but her bail application was rejected. However, the learned trial Court had directed the Jail Authority for making proper arrangement for the delivery of her child.
6. The petitioner gave birth to a child on 15-1-2001 at the District Headquarter Hospital. She is now interned in jail alongwith her child and is asking-tor her bail.
7. The petitioner was caught red-handed and the recovery of Charas was made from her at the spot, which brought her case under the mischief of section 9-C of the Control of Narcotic Substances Act.
8. But the question is, should the new born child who has committed no wrong, also suffer in jail because of the .Necessitated company? The answer is in the negative. But then should the petitioner be enlarged on bail because of the rights of her child? According to the learned counsel for the prosecution's side, the present trend is that pregnant women are being used for smuggling of narcotics because it is easier for them to obtain bail on this ground. We find no good ground for her bail at this stage. We also do not wish the child to suffer on account of the incarceration of her mother involved in a crime. Then what should be done?
9. Chapter 13 of the Pakistan Prison Rules made under the Prisons Act of 1894, deals with women prisons as well as children and speaks about the amenities which are to be provided to such prisoners. Rules 325 to 328 are relevant in this connection. These speak of the period for which a woman can keep a child with her in jail and according to Notification of the Home Department, Government of Punjab dated 18-7-1988, the period is 6 years. After a child becomes disqualified for further retention or when a woman prisoner dies or is executed and leaves a child, the Superintendent of the jail is to inform the District Magistrate about the situation and the latter is to arrange for the proper care of the child. In case the relatives or friends of the prisoner were unwilling to support the child, the District Magistrate has to arrange for the removal of the child to a Health Nursary surroundings through the special societies managing such institutions. The child is then returnable to the mother upon her release provided she was ready to accept him and also capable of taking care of him. The diet and clothing for such children are provided under Rule 328.
10. In Islamic history, we have the famous case of Ghamidiyyah and there is Sunnah of the Holy Prophet (p.b.u.h.) in this respect. Who had suspended the sentence of Ghamidiyyah not only till the delivery of her child but also postponed it till the suckling period i.e, 2 years. However, while keeping in view the abovementioned precedent and also growing tendency of narcotics smuggling through women in the family way, we would wish to find a solution for the care of the innocent children.
11. We are signatory to the United Nation Charter of 1945. Article 25(2) of the Charter reads as follows:-- ' "Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection."
12. Reference may also be made to the convention on the rights of the child adopted by the United National General Assembly on November 20 of 1989. A reference may also be made to Article 20 of the Convention which reads as follows:-- ' "A child temporarily or permanently deprived of his or her family environment, or in whose own best interests cannot be allowed to remain in that environment, shall be entitled to special protection and assistance provided by the State.
(2) State parties shall in accordance with their national laws ensure alternative care for such a child.
(3) Such care could include, inter alia, foster placement, Kafala of Islamic Law, adoption, or if necessary placement in suitable institutions for the care of children. When considering solutions, due regard shall be paid to the desirability of continuity in a child's upbringing and to the child's ethnic, religious, cultural and linguistic background."
13. Reference may also be made to the Cairo Declaration on Human Rights in Islam, dated 5th August, 1990. Its Article 7(a) reads as follows:-- "As of the moment of birth, every child has rights due from the parents, society and the State to be accorded proper nursing, education and material, hygienic and moral care. Both the fetus and the mother must be protected and accorded special care."
14. A perusal of Chapter 13 of the Prison Rules shows a deficiency in catering for the needs of such children pursuant to the declarations of United Nation Charter and the convention on the rights of the child etc. And we are supposed to amend the rules for catering for the needs of the newly born children in jail by amending Chapter 13 and particularly. Rule 327 in this connection.
15. Anyway, in the meanwhile, we feel it appropriate to direct the District Magistrate, Rawalpindi, to arrange for the removal of the petitioner and her child to be interned in Darul Aman, Rawalpindi, immediately and to keep her there until her case is disposed of by the trial Court or for a period of 2 years, the suckling period allowed by the Holy Prophet (p.b.u.h.) himself, and at State expense.
Which may be arranged by the District Magistrate through the Zakat Fund or any fund meant for social welfare.
16. While the Provincial Government is directed to amend the Rules reflected in Chapter 13 of the Prison Rules, 1934.
17. A copy of the order may, therefore, be immediately sent to the Home Secretary, Government of the Punjab, for compliance. While a copy of this order be also sent to the Secretary of the Pakistan Law Commission for necessary action in this connection.
18. The District Magistrate shall be submitting a compliance report to this Court ensuring that it reaches this Court by the 1st of June, 2001.
19. Obviously, the Jail Superintendent has to facilitate the District Magistrate for fulfilment of the requirements aforementioned. The bail application, anyhow, stands dismissed.
Bail refused.
2001 P Cr. L J 1300 [Karachi] before Abdul Hameed Dogar, J MUHAMMAD AKRAM---Appellant versus THE STATE---Respondent Criminal Appeal No,97 of 1994, decided on 1st October, 1998.
(a) Penal Code (XLV of 1860)- ----S. 302---Criminal Procedure Code (V of 1898), Ss.364(2), 342 & 162-- Qanun-e-Shahadat (10 of 1984), Art.37---Appreciation of evidence---Statement made by the accused before police was inadmissible in evidence and the same having been not recorded before any Magistrate could not be equated with his confession---Said statement was also not got signed by the persons of the locality who were visiting the police station at the time when the accused had appeared there--- Defence plea that the deceased had committed suicide carried weight---Mandatory provision of S.364(2), Cr.P.C. Having not been complied with by not getting the statement of accused recorded under S.342, Cr.P.C. Signed by him, such statement could not be treated as recorded in the case and the important piece of incriminating evidence, thus, having not been put to accused under 5.342, Cr.P.C. Could not be considered for the purpose of conviction against him---Statement of accused was not only reduced into writing by the police but was also got signed by him and as such the same even could not be equated with one under 5.162, Cr.P.C.---Accused was acquitted in circumstances. [pp. 1303, 1304, 1305] A, Fc, D, E & F AIR 1939 PC 49; Muhammad Saleh v. The State PLD 1965 SC 366; Noorul Haq v. The State 1992 SCM R 1451 and Pakala Narayana Swami v. Emperor AIR 1939 PC 47 ref.
(b) Criminal Procedure Code (V of 1898)--- ----Ss. 342, 364(2) & 537---Penal Code (XLV of 1860), S.302---Examination of accused---Omission to get the statement of accused recorded under 5.342, Cr.P.C. Signed by him is an illegality not curable under 5.537, Cr.P.C., being a violation of the mandatory requirement of S.364(2), Cr.P.C. [p. 1304] C
(c) Qanun-e-Shahadat (10 of 1984)--- ----Art. 37---Article 37, Qanun-e-Shahadat, 1984 stipulates that no confession made to a Police Officer shall be proved as against a person accused of an offence. [p. 1304] All Azizullah Shaikh for Appellant.
Jawed Akhtar for the State.
Date-of hearing: 1st, October, 1998.
' This appeal is directed against the judgment, dated 28-5-1994 of the learned Ilnd Additional Sessions Judge, Larkana, whereby he convicted the appellant under section 302, P.P.C. And sentenced him to imprisonment for life and also a ,fine of Rs,10,000 and in default whereof to undergo further R.I. For six months. Fine, if realised, be paid as compensation to the legal heirs of the deceased. He was, however, awarded benefit of section 382-B, Cr.P.C. In the computation of his sentence.
' Precisely, the case of the prosecution is that the appellant, a doctor by profession, appeared before A.S.-1. Mumtaz Ali Siyal of Police Station Naseerabad on 28-4-1993 at about 1-20 p.m., who recorded his statement by which he had stated that he had a clinic in Naseerabad Town and Mst.
Akhtarunnisa daughter of Maulai alias Deen Muhammad Massan was his wife and they had two sons and a daughter out of the wedlock. He further stated that his brother Muhammad Aslam resides in America since last 15 years being a computer engineer and he used to ask the appellant to come to America for further education but his wife was not allowing him to go there and on.
Such refusal he made up mind to kill her. About a month prior to the incident he purchased a pistol from one unknown Pathan in the sum of Rs,700 and kept the same in his clinic. On the day of incident while sitting in the clinic he made up mind to proceed to America and for that purpose he went to his house to seek permission from his wife and if she refused she should be done to death.
The appellant called his wife to his bed-room and asked her to allow him to go to America but she refused and got annoyed and also insulted him, upon which he got enraged and took out the pistol from the fold of his trouser and kept the same on her chest and fired, who fell down and died at the spot. He produced the said pistol before the police.
' The said A.S.-1. After recording the statement in verbatim in presence of H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed incorporated the same in 154, Cr.P.C. Book. He secured the pistol from the appellant's possession and found the same loaded with an empty in presence of the Mashirs and then prepared a memo. Of Wardat in presence of Mashirs Gada Hussain and Khalil-ur- Rehman. Thereafter, he recorded the statements of P. Ws. And after completing the investigation put up charge-sheet against the appellant before the Court of law.
' A formal charge under section 302, P.P.C. (Qisas and Diyat Ordinance, 1989) was framed against the appellant to which he pleaded not guilty and claimed trial.
' The prosecution at trial examined A.S.-I. Mumtaz Ali, P.C. Deedar Ali, H.C. Manzoor Ali, Dr. Thakurdas and P.W. Gada Hussain.
' The appellant in his statement under section 342, Cr.P.C. Denied the prosecution case and claimed to be innocent and he also denied his recording of statement before A.S.-I. Mumtaz Ali and production of unlicensed country-made pistol with an empty inside. According to him, his wife had committed suicide and when he went to inform such fact to police he was detained and was kept in police lock-up at the behest of A.S.-I. Nisar Ahmed, his brother-in-law, the brother of the deceased, who cooked up this false case against him. He further stated that police visited the Wardat first and secured pistol from there and then called A.S.-I. Nisar Ahmed from Larkana and with his consultation above forged documents were prepared. He did not examine himself on oath as required under section 340(2), Cr.P.C. And also did not examine any person in -defence.
' The learned trial Court framed the following points for determination:--
(I) Whether Mst. Akhtarunnisa died due to unnatural death by receiving a fire-arm injury?
(2) Whether the accused is responsible for causing the murder of his own wife?
(3) Whether the accused produced the country-made pistol loaded with an empty cartridge before the police?
(4) Result.
' On the assessm ent of evidence the learned trial Court found the appellant guilty and convicted him and sentenced as abovementioned.
' I have heard Mr. Azizullah K. Shaikh, the learned counsel for the appellant and Mr. Jawed Akhtar, the learned Advocate appearing on behalf of the Advocate-General, Sindh, for the State, at length and have gone through the record and proceedings of the case.
' It is contended on behalf of the appellant that the case of prosecution at the very outset is false and concocted and has been managed at the behest of A.S.-I. Nisar Ahmed, brother of deceased.
According to him the initial statement of the appellant recorded at police station by A.S.-I. Mumtaz Ali in presence of H.C. Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed has got no value and is inadmissible in evidence. According to him his statement cannot be termed to be a confession in view of Article 37 of Qanun-e-Shahadat, by which his statement before police cannot be termed to be a confession of the accused. Even if this is treated as a statement before the police, the same is also inadmissible in evidence. He further contended that if the appellant had committed the offence as alleged, he should have volunteered himself and would have got recorded his confessional statement before the police. This fact further gets support from the statement of Investigating Officer examined at trial, who has categorically said that the appellant refused to record his confession though asked to do so. In support of this contention the learned counsel has relied upon decisions reported in AIR 1939 PC 49, PLD 1965 SC 366 and 1992 SCM R 1451. He further contended that the said statement of the appellant before the police could not be relied upon to be independent in nature as the same has neither been recorded in presence of independent persons available at police station nor got signed from them. Prosecution witness Manzoor Ali stated at trial that the moment the appellant appeared at the police station, so many persons were coming and going at police station. According to him the factum that the deceased had committed suicide is supported by medical evidence of P.W. Dr. Thakurdas, who, in his cross- examination, has said that receipt of injury is vulnerable from the right hand. There is possibility that the injury could be caused by the victim herself by using her right hand. He lastly contended that the statement of accused recorded at trial has not been signed by the appellant which is a mandatory provision of law and in absence of such the same is to be taken out of consideration.
' On the other hand, the learned State Counsel in the first instance before tea break did not support the judgment and supported the case of the appellant and stated that his case is covered under the benefit of doubt and had no objection if the appellant is acquitted. But when the matter was again taken at 11 a.m. After tea break, as the learned counsel for the appellant had to produce some case-law, the, learned State Counsel stated contrary to what he argued earlier and supported the judgment but could not produce any case-law in rebuttal to the one produced by the appellant's counsel.
This case mainly hinges on two important legal points. The first point agitated that initial statement of the appellant recorded by A.S.-I Mumtaz Ali at Police Station Naseerabad should not be acted upon as being inadmissible in evidence, has got sufficient force. The reasons for the sari firstly are that it is a simple statement before the police which is inadmissible in evidence and secondly, the said statement cannot even be equated with confession as the same has not been recorded before any Magistrate but with recorded by A.S.-I. In presence of two police Mashirs, namely, H.C.
Manzoor Ali Bhutto and W.H.C. Mukhtiar Ahmed. It further loses its value as the same was not got signed from the persons of locality who were visiting police station at the time the appellant appeared there, which fact is supported by P.W. Manzoor Ali in his evidence at trial. Article 37 of Qanun-e-Shahadat stipulates that no confession made to Police Officer shall be proved as against a person accused of any offence. It is pertinent to note here that if the- statement of the appellant before police was voluntarily and true, then he should have been immediately produced before a Magistrate having jurisdiction where his confessional statement should have been recorded. By not doing so, inference can be drawn that the appellant was not willing to confess his guilt. This gets support from the statement of P.W. Mumtaz Ali, Investigating Officer , of this case; according to him, the appellant was produced before the Mukthiarkar and F.C.M., Malir on the next day of recording of F.I.R., but he did not admit the guilt and refused to make confession.
' In such circumstances it would be highly unsafe to rely upon the said statement. The defence version put, forth by the appellant in his statement under section 342, Cr.P.C. Merits consideration and should not have been ignored by the learned trial Court. It has come on record that A.S.-I. Nisar Ali was the brother of deceased and had arrived at police station immediately after the incident though he was posted at Larkana, about 20 miles away from Naseerabad. The version that case was cooked up at his behest has sufficient force and the defence plea that deceased had committed suicide carries weight.
' From the admission of P.W. Dr. Thakurdas made during his cross-examination to the effect that there were possibilities of deceased having fired the fatal injury by using her right hand further strengthens the above defence version.
Admittedly the statement of the appellant under section 342, Cr.P.C. Has not been got signed by him, which is a mandatory requirement of section 364(2), Cr.P.C. This amounts to an illegality not curable under section 537, Cr.P.C., as such it would be termed as if the statement was never recorded at trial.
' Admittedly a mandatory provision as laid down under section 364(2), Cr.P.C. Has not been complied with in this case by not getting the statement of the appellant signed by him before the trial Court. In these circumstances it can be held that statement under section 342, Cr.P.C. Of the appellant has not been recorded in this case. By observing this the important piece of evidence having not been put to the appellant under action 342, Cr.P.C., the same cannot be considered for the purposes of coviction against him.
' In the case of Pakala Narayana Swami v. Emperor AIR 1939 PC 47, it has been held that the words of section 162, Cr.P.C. Are plainly wide enough to exclude any confession made to a Police Officer in course of investigation whether a discovery is made or not. Even otherwise the statement of a person recorded by police under section 162, Cr.P.C. If reduced into writing, be not got signed by the person making it. Here the statement of appellant was not only reduced into writing by police, but was got signed by him as such the same even cannot be equated with one section 162, Cr.P.C.
' The Honourable Supreme Court in the case of Muhammad Saleh v. The State PLO 1965 SC 366, has termed the statement of appellant Muhammad Saleh, made before police which was incorporated in 154, Cr.P.C. Book reporting his own crime (murder), was found inadmissible in evidence on account of inculpatory nature.
' The Honourable Shariat Appellate Bench in the case of Noorul Haq v. The State 1992 SCM R 1451, has laid down a dictum that person charged with a criminal offence is to be saddled with the liability only if prosecution has established its case against him beyond all reasonable doubt. Plea taken by an accused may be false, but he cannot be convicted on such false plea.
For what has been discussed above, I am of the considered opinion that the prosecution has failed to prove the case against the appellant beyond any shadow of doubt. Resulting the appeal is accepted, the appellant is acquitted from the charges and his conviction and sentence is also set aside. He is on bail, his bail and bond stand discharged.