1990 PLP 195 (MLD)

(15) An oblique incised wound 3/4" x 1/8" x skin deep on the back left scapula lower part. (16) An incised wound 3/4" x 1/4". x skin‑deep i/2" inner to injury No. 15. (17) An incised wound 1‑1/2" x 1/2" x muscle deep on the back of left chest middle below the left scapula horizontally. (18) An incised wound 1‑1/2" x 3/4" muscle deep on the back, of left chest below injury No.17 oblique. (19) An incisded wound 3/4" x 1/4" x 1/2" on the lower part of left chest on the posterior axillary line oblique.

6. In the opinion of the doctor the cause of death was shock and haemorrhage and injuries to both lungs due to injuries Nos.8, 9, and 13 and injury to peritoneum and small intestines due to injury No.12, all these injuries were sufficient to cause death in the ordinary course of nature. All injuries were by a sharp‑edged weapon and were ante‑mortem. Duration between injuries and death was stated to be within one hour and between death and post‑mortem from 24 to 49 hours. The doctor also observed corresponding cuts on the clothes with respect to injuries Nos.8 to

19. The doctor proved his post‑mortem report Ex. P J and diagrammes of injuries Ex.P.J/1.

7. Dr. Mansab Ali (P.W.12) medically examined Mazhar Hussain appellant on 1‑3‑1974, when ‑he was brought by the police at 10‑30 a.m. He found the following injuries on his person:‑ (1) An incised wound 1/2" x 1/4" x 1/4" on the front of right index finger, lower 1/3rd with septic margins and crust around the margins. (2) Five linear cuts on the palmer surface of right thumb minimum 1/2" long and maximum 1" long. (3) A linear cut with crust on the dorsum of right hand near the medial border and wrist. The injuries were simple in nature, caused by a sharp‑edged weapon and were of about one week's duration. The doctor proved his medico‑legal report Ex.P.W.12/B.

8. The appellant denied the prosecution allegations in his statement under section 342, Cr.P.C. He pleaded innocence and about the injuries on his person he stated that the police had previously arrested another Mazhar Hussain and thereafter arrested and injured him. No evidence was produced in his defence.

9. It would be advantageous to mention the alleged confessional statement made by the appellant before the Summary Military Court which is reproduced as under:‑ "On 21 Feb. 1974, I was detailed for night guard duty on ration and clothing stores by our PI Hav No.2656472 Nk Alaf Gul. I was on duty at 2400 hours 21 Feb. 1974 to 0200 hours 22 Feb. 1974. After finishing my night duty I came back to my tent. On morning 22 Feb 1974 at about 1100 hours I alongwith sepoy Lal Khan who was going on discharge from service to his village Chakoa left Mansar Camp by bus for Dina at about 1200 hours on 22 Feb.1974. At about 2000 hours on 22 Feb 74 we took bus from Dina to Chakoa village and reached Chakoa station at about 2030 hours. Since the village Chakoa was about a mile away from the main road so we started walking towards Chakoa village on a Kacha track leading to village Chakoa. After having travelled about one‑quarter of a mile, sepoy Lal Hussain told me to sit down for few minutes for rest. We both sat down on the side of the track and started chatting. All of a sudden I saw sepoy Lal Hussain dragging a knife from his pocket and attacked me. On this sudden attack I received minor injury on my right hand wrist. After his first attack which caused me minor injury, I started running towards his village Chakoa. Hardly I could manage to run about fifteen yards, I slipped and fell down on the ground. The moment I fell on the ground, I saw sepoy Lal Hussain also fall down next to me with his knife in his hand. During this process I had received another minor injury on my right hand first finger. On this sepoy Lal Hussain had lost the grip of his knife and was lying on the ground next to me. I immediately took his knife from the ground and stabbed sepoy Lal Hussain on his neck and left his knife there. After that I ran away from that place and came to the main road. At about 2200 hours on 22 Feb 74 I took a bus for Mansar Camp. I reached Mansar Camp at about 0900 hours on 23 Feb. 74."

10. I have heard the learned counsel for the parties and have perused the record with their able assistance.

11. Learned counsel for the appellant contended that there is no provision in the Pakistan Army Act whereby a confession of a person could be recorded in the Court nor the appellant was facing a charge of murder before the Summary Military Court, hence any statement made by the appellant before the Military Court cannot form the basis of his conviction. It is correct that there is no provision in the Army Act for recording confessional statement during the course of investigation, by virtue of section 5(2) Cr. P.C. which reads as under:‑ "5(1) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "5(2) All offences, under any other law shall be investigated, be inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences."

12. Army authorities during the investigation of a case can invoke the `' provisions of section referred above, confession can be recorded under section referred above, confession can be recorded under section 164 Cr. P C read with section 364, Cr.P.C. It would be desirable to reproduce sections 164 and 364, Cr.P.C. in extenso for the facility of reference:‑ "164.‑(1) Any Magistrate of the first class and any Magistrate of the second class specially empowered in this behalf by the (Provincial Government) may, if he is not a police officer, record any statement or confession made to him in the course of an investigation under this Chapter or at any time afterwards before the commencement of the inquiry or trial. (1‑A) Any such statement may be recorded by such Magistrate in the presence of the accused, and the accused given an opportunity of cross‑examining the witness making the statement. (2) Such statements shall be recorded in such of the manners hereinafter prescribed for recording evidence as is, in his opinion best fitted for the circumstances of the case. Such confessions shall be recorded and signed in the manner provided in section 364, and such statements or confessions shall then be forwarded to the Magistrate by whom the case is to be inquired into or tried. (3) A Magistrate shah, before recording any such confession, explain to the person making it that he is not bound to make a confession and that if he does so it may be used as evidence against him and no Magistrate shall record any such confession unless, upon questioning the person making it, he has reason to believe that it was made voluntarily; and,. when he records any confession, he shall make a memorandum at the foot of such record to the following effect: I have explained to (name) that he is not bound to make a confession and that, if he does so, any confession he may make may be used as evidence against him and I believe that this confession was voluntarily made. It was taken in my presence and hearing, and was read over to the person making it and admitted by him to be correct and it contains a full and true account of the statement made by him. Explanation.‑‑It is not necessary that the Magistrate receiving and recording a confession or statement should be a Magistrate having jurisdiction in the case." 364.‑‑(1) Whenever the accused is examined by any Magistrate or by any Court other than a High Court, the whole of such examination, including every question put to him and every answer given by him, shall be recorded in full, in the language of the Court or in English: and such record shall be shown or read to him, or, if he does not understand the language in which it is written, shall be interpreted to him in a language which he understands and he shall be at liberty to explain or add to his answers. (2) When the whole is made conformable to what he declares is the truth, the record shall be signed by the accused and the Magistrate or Judge of such Court, and such Magistrate or Judge shall certify under his own hand that the examination was taken in his presence and hearing and that the record contains a full and true account of the statement made by the accused. (3) In cases in which the examination of the accused is not recorded by the Magistrate or Judge himself, he shall be bound, as the examination proceeds, to make a memorandum thereof in the language of the Court, or in English, if he is sufficiently acquainted with the latter language; and such memorandum shall be written and signed by the Magistrate or Judge with his own hand, and shall be annexed to the record. If Magistrate or Judge is unable to make a memorandum as above required, he shall record the reason of such inability. (4) Nothing in this section shall be deemed to apply to the examination of an accused person under section 263."

13. The combined reading of the Army Act with sections 5(2), 164 and 364, Cr.P.C. referred above would show that the Army authorities, if they have to record the confession of the accused, are legally bound to follow the procedure laid down in Criminal Procedure Code, and have to produce the accused before the Magistrate for recording the judicial confession, the section 164 Cr. P C, contemplates that accused person would be produced before the learned Magistrate who would record the confession after observing all the formalities laid down in the section to ensure that confession has been made voluntarily by a person who is an accused in a particular case. The learned Magistrate would be append the certificate with confession, and also take down the confession in the manner prescribed in section 364 Cr.P.C. then that judicial confession would be admissible under section 80 of the Evidence Act.

14. The learned defence counsel elaborating his arguments, submitted in the present case, these legal formalities were not observed, by the Army authorities, hence the alleged judicial confession is wholly irrelevant and inadmissible in evidence, no conviction could be recorded on the basis of this judicial confession.

15. Before entering into this discussion, it would be appropriate at this stage, to give ordinary dictionary meaning of word confession" which means "admission of guilt".

16. The confession if recorded in compliance with the provisions of sections 164 and 364, Cr.P.C., then it become judicial confession, the law attaches great sanctity to it, being free from duress and undue influence, and conviction can be based upon that confession if corroborated .by independent circumstantial evidence.

17. It is well‑settled principle of law that an admission made by a person whether it amounted to a confession or not, cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If any authority is needed in support of this view, I would not go beyond the decision of Federal Court in Rahim Bakhsh v. Crown (P L D 1952 F C 1) and extract the following terse observation of Abdul Rashid, C.J., at page 7:‑ "If the conviction of the petitioner is to be based solely on his statement in Court, dated the 11th May 1944, it is obvious that this statement should be taken into consideration in its entirety."

18. Learned counsel for the State submitted that the statement of the appellant made by him, before the Summary Military Court was a judicial confession as he was facing trial before the Court on account of his absence, this piece of evidence is admissible under the Evidence Act, and can form the basis of conviction as has been done by the trial Court, which has been proved through the testimony of Major Muhammad Azhar Choudhry (C.W.1) who was the President of Summary Military Court.

19. I have given my anxious consideration to the legal points raised therein, I am of the firm opinion that the statement of appellant reproduced above, made by him before C.W.1, cannot be termed as judicial confession, as it has not been recorded by observing formalities laid down in section 164, Cr.P.C., at the best it can be termed as extra‑judicial confession, still it would not be relevant under the Evidence Act, because appellant was not facing the charge of murder before the Summary Military Court; according to the provision of the Army Act the offence of murder, could not be tried by the Summary Military Court, the alleged confession cannot be used against the appellant.

20. There is another formidable legal objection against the alleged judicial confession of the appellant, because if that statement is read as a whole it is not a confession but a defence plea of the accused, for his absence from duty.

21. The learned trial Court has erred in law while placing reliance upon this inadmissible piece of evidence, which was neither judicial confession nor extra judicial confession in the eye of law, by any stretch of imagination, and no conviction can be recorded on this statement.

22. The State counsel has candidly admitted that if this piece of evidence is excluded or discarded, then prosecution is left with no other evidence, except the evidence of last seen with the deceased, which is also of a dubious character, hence prosecution has failed to prove its case against the appellant beyond reasonable doubt.

23. The trial Court has not believed the evidence of recovery of the knife at the instance of the appellant, I have no reason to disagree with this finding of fact, which is based upon the proper appreciation of the evidence.

24. As a result of foregoing discussion, I hold that Mazhar Hussain appellant is entitled to the benefit of doubt and accepting his appeal, I set aside his conviction and sentence, and acquit him. The appellant is on bail, he is discharged from bail bond. N.H.Q./M‑1612/L Appeal accepted.