This revision petition is directed against the order dated 15-6-2002, passed by the learned Additional Sessions Judge, Lahore by which he had dismissed an application filed by the petitioner under sections 161 and 162, Cr.P.C. Read with Article 131 of the Qanun-e-Shahadat Order, 1984.
2. The brief facts of the case are that case F.I.R. No,193 of 2000 was registered on 6-6-2000 in Police Station Kot Lakhpat, Lahore under sections 302/324/148/149, P.P.C. And the challan was submitted against Bashir Ahmed, Muhammad Jehangir and Muhammad Zaman who are presently confined in Central Jail, Kot Lakhpat, Lahore. (as per contents of the Revision Petition). The Police had shown the names of Nazir Ahmed and Zulfiqar accused in Column No,2 of the report under section 173, Cr.P.C. Feeling aggrieved of the investigation, the petitioner filed a private complaint under sections 302/324/148/149, P.P.C. Against all five accused aforesaid and after preliminary enquiry the learned Additional Sessions Judge, Lahore vide his order dated 31-3-2001 summoned them to face the trial.
During the trial (in the complaint case), Muhammad Arshad, Constable appeared as P.W.4 and in his cross-examination, the learned Defence Counsel put a question to him as to whether Jehangir accused had stated (before the Investigating Officer) that the pistol produced by him belonged to Kala and to which P.W.4 replied in the affirmative. The learned counsel for the complainant/petitioner objected to the admissibility of the question/answer aforesaid on the ground that it being 'confession before the Police' was inadmissible in evidence. Vide his detailed order dated 2-6-2001, the then learned Additional Sessions Judge, Lahore overruled the objection.
Being not satisfied with the order dated 2-6-2002 the complainant/petitioner then filed an application under sections 161/162, Cr.P.C. Read with Article 131 of the Qanun-e-Shahadat Order, 1984 stating therein that when Jehangir accused/respondent had appeared before the Investigating Officer in Police Station Kot Lakhpat, Lahore on 7-8-2002 and had produced pistol 9 M.M. Two magazines and six live bullets voluntarily by himself, he had not been arrested by the Police by that time and as such the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984 were not attracted and almost that any statement made by the accused before the Police was inadmissible in evidence with reference to sections 161/162, Cr.P.C. It was further stated therein that the statement of P.W.4, with reference to his cross-examination, distinctly falls under section 161, Cr.P.C. And, therefore, the same be ordered to be declared inadmissible and no questions in this regard may be allowed to be asked by the Defence. After hearing the arguments, vide his order dated 15-6-2002, the learned Additional Sessions Judge, Lahore dismissed the said application.
Hence this revision petition.
3. I have carefully considered the arguments and have also gone through the record.
4. The learned counsel for the petitioner has placed reliance on the case of Saleem Pervaiz v. The State (1978 PCr.LJ 458 (Lahore)) and has argued that where the accused was informing the Police of having given crime weapon to a person and the recovery of weapon was effected at the instance of aforesaid person, it was held (in the aforesaid authority) that the information given by the accused to .Police not being proximate cause of recovery, such recovery was inadmissible for use against the accused and the statement of the accused regarding handing over of weapon to that other person was of no consequence. It was also argued that while making the statement before the Police, Jehangir accused was not in custody while he produced the pistol, magazines etc. Before the Investigating Officer and as such his statement was not covered under Article 40 of the Qanun-e-Shahadat Order, 1984 as it was not information envisaged in the said provision of law.
5. He has also placed reliance on the case of Sukhan v. Emperor (AIR 1929 Lahore 344) and has argued that only that portion of information which is immediate and proximate cause of discovery of fact can be proved and that the Legislature had prescribed two limitations in order to define the scope of the information provable against the accused (1) the information must be such as has caused the discovery of the fact, and (2) the information must "relate distinctly" to the fact discovered and the requirements of both the conditions specified must be satisfied before an incriminating statement can be received in evidence and thus only that portion of information is provable which was the immediate or proximate cause of the discovery of the fact. He has also argued that anything which is not connected with the fact as its cause, or is connected with it not as its immediate or direct cause, but as its remote cause does not come within the ambit of the section and should be excluded.
6. On the other hand, from the other side, the learned counsel for the respondent/accused has argued that the objection raised by the complainant side was irrelevant for all intents and purposes. He has argued that appearance of Jehangir accused before the Police means that he had surrendered himself before the Police. Referring to Jalla v. Emperor (AIR 1931 Lahore 278), he has argued that the word 'custody' does not necessarily mean detention or confinement but submission to custody by word or action under section 46(1) of the Criminal Procedure Code, may be taken to amount to custody. He has further argued that the aforesaid statement of P.W.4 did not amount to a confession before the Police by any stretch of imagination and as such it was clearly admissible.
7. I do not think that the authorities relied upon by the learned counsel for the petitioner help him in any way. In the authority reported as AIR 1929 Lahore 344 reliance on which has been placed by the learned counsel for the petitioner, it was held that section 39 of the Evidence Act, 1872 could not be invoked for the purpose of letting in a confession in respect of which the bar created by sections 24, 25 and 26 of the Evidence Act, 1872 had not been removed by section 27 thereof and the word 'statement' is used interchangeably with the word 'information. The authority reported as Saleem Pervaiz v. The State (1978 PCr.LJ. 458 (Lahore)) was also based on altogether different facts.
7-A Article 39 of the Qanun-e-Shahadat Order, 1984 provides that subject to Article 40, no confession made by any person whilst he is in the custody of a Police Officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person. Article 40 of the Qanun-e-Shahadat Order, 1984 in fact provides an exception to the rule embodied in Article 30 aforesaid. According to Article 40 of the Qanun-e-Shahadat Order, 1984, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a Police Officer, so much of .Such information whether it amounts to confession or not, as relates distinctly to the fact thereby discovered, may be proved. From this provision of law it can be clearly inferred that only so much of such information, received from a person accused of any offence, in the custody of a Police Officer can be proved which relates distinctly to the fact thereby discovered. In the instant case the statement of Jehangir accused with respect to the production of revolver by him distinctly relates to the fact regarding the production of a revolver by him. Had the prosecution (or the complainant) tried to exceed the limit prescribed by law, the accused could have objected to the same, describing it as an invasion on his rights. It is not understandable as to how the complainant can raise an objection to that effect. After all, if the disclosure or statement made by an accused before the Police is used against him i,e, the accused, it is the case of the accused which is prejudiced and not of the complainant or the prosecution.
7-B In my view, an unintentional effort was made to misconstrue the provisions of Article 40 of the Qanun-e-Shahadat Order, 1984 and which in fact further qualifies Article 39 of the Qanun-e- Shahadat Order, 1984 and which is in fact intended to protect the rights of the accused, Besides that, the basic objection raised from the side of the complainant was that the statement of the witness i,e, P.W.4 to the effect that Jehangir accused had stated tint pistol produced by him belongs to Kala' is a confession before the Police and as such the aforesaid statement is not admissible. Even a curs icy g ante through the statement indicates that it was not a confession before the Police and could be in fact treated information, as visualized under Article 40 of the Qanun-e-Shahadat Order, 1984. The impugned order of the learned Additional Sessions Judge, Lahore dated 15-6-2002 is perfectly a legal order,clothed with authority and in accordance with law and could not be treated as a perverse or fanciful in any way. The revision petition is misconceived and C is without any legal basis and is accordingly dismissed.
Revision .