2018 P Cr (PLP)

QAZI MUHAMMAD AMIN AHMED, J.

Muhammad Naseem, petitioner herein, is amongst the accused, contesting indictment of homicide before a learned Addl. Sessions Judge at Jand; it is alleged that, in connivance with co-accused, he administered poison to Kousar Parveen, no other than his better half. Trial is in progress and the prosecution in its bid to drive home the charge, produced Ali Muhammad (PW-7) alongside other witnesses; his detailed narrative recorded on 10-3-2017 referred to a confessional statement allegedly made by the petitioner while he was undergoing the rigors of physical remand; it is further stated by the said witness that subsequent to the disclosure, the petitioner also pointed out the place where he administered the poison, details whereof were incorporated in identification/disclosure memo Ex.PH. The precise grievance raised at the bar is that confession allegedly attributed to the petitioner, being a disclosure in police custody, is hit by Article 39 of the Qanun-e-Shahadat Order, 1984 and as such ought not to have been allowed to be part of evidence brought on the record and that in the absence of discovery of any 'fact' within the contemplation of Article 40 of the Order ibid, memo Ex.PH could not be exhibited nor read to his detriment. The learned Law Officer, in all fairness, does not contest the plea to the extent of Ali Muhammad (PW-7).

2. Heard. Record perused.

3. Administration of criminal justice is based upon adversarial trial with accused under a statutory presumption of being innocent and it is for the prosecution alone to drive home the charge beyond reasonable doubt before a guilty verdict is returned by the Court and in the process, he is protected by procedural safeguards to ensure him a fair deal in order to contest the charge without being disadvantageously placed or unduly embarrassed. On top of procedural safeguards, provided to an accused in the dock, is protection against self incrimination, thus, an accused cannot be burdened with confessional statement in derogation of the strict procedure provided under the law. Article 39 of the Order ibid places, an unambiguous and unqualified prohibition on the admissibility of confessional statement, purportedly recorded in police custody, save in exception provided under Article 40 thereof. Therefore, the learned trial Judge ought not to have allowed Ali Muhammad (PW-7) to transgress the statutory limits. Status of memo Ex.PH is not much different; it is prosecution's own case that the deceased was done to death in the residential premises where she lived with the petitioner under the same roof and as such attributed specification of the place does not constitute 'information' within the meaning of said Article. Criminal Revision No.142 of 2017 is allowed; the learned trial Judge shall exclude statement of Ali Muhammad (PW-7) from consideration at the time of final decision, insofar as the case of Dr. Neelam Irshad (PW-10) is concerned, learned counsel does not press the plea. Order accordingly. MH/M-179/L Revision allowed.