1998 PLP 243 (MLD)

ABDUL WAHEED SIDDIQUI J.‑‑‑This Jail Criminal Appeal has been preferred against an order on the Order‑sheet dated 5‑7‑1994 passed by the Court of Sessions Judge, Kasur by which he has convicted the appellant under swoon 302, P.P.C. a well as under section 14, Offences Against Property. (Enfomement of Hudood) Ordinance 1999 read with section 379, P.P.C. On the first Fount the appellant had been sentenced to imprisonment for life and to pay compensation amounting to Rs. 20,000 to the legal heirs of the deceased in default of payment thereof to suffer imprisonment for a period of six months' S.I, On the second count he hag been sentenced to R.I. of two Years, Both the sentences have been ordered to run consecutively.

2. Story of prosecution in brief is that one Muhammad Tufail (P.W. 11) got a complaint (Exh, PB) recorded by Manzoor Ahmed (P. W.14) Inspector/S.H.O, Police Station Thana Khudian, District Kasur on 20‑4‑1993 @ 12‑00 hours while he was at Addah Khudian on patrol duty. It was sent to the police station and was registered as F.I.R. (Exh,P.B/1) @ 12‑20 hours on the same day. The complaint (Exh.PB) in a nutshell is that the complainant is a resident of Saidpur and is a cultivator. On 18‑4‑1993 he left his son Khadim Hussain (deceased) aged 8/l0 years in the fields for grazing cattle, He was accompanied by Muhammad Nawaz (P.W, 13). They had seen on the spot the present appellant and Rahmat (acquitted accused) somewhere near his son. By the evening, his son did not return alongwith the cattle, He started search and was informed by Nazir Ahmed (P,W,13) and Muhammad Sadiq that they had soon hits son going towards Kot Piran alongwith cattle. He remained in search of his son and the cattle but had failed. He indicated his strong suspicion about the murder of his son by the appellant and his accomplice Rehmat and theft of cattle by both. He was going accompanied by Haji Bashir Dogar for report to the police station but the police party met him on the way and got the complaint (Exh. PB) record. On secret information, appellant was arrested on the same day from bus stop Talvandi who led to the recovery of the dead body of the deceased from the fields. After compliance of necessary requirements of law, the dead body was sent for post‑mortem examination to D.H.Q., Hospital Kasur. A post‑mortem examination was conducted by Dr. Arif Mehmood (P.W.5) on 20‑4‑1993 @ 4‑50 p.m. Next day the stolen cattle were taken into possession by Manzoor Ahmed, (P.W.14) first Investigation Officer, from Police Station Allahabad which was already taken into possession by the said police station on 18‑4‑1993 under section 550, Cr.P.C. vide Exh.PE. Recovery of blood‑stained Churri (P.4) was effected by Mushtaq Ahmad (P.W.12) SI/SHO, second Investigation Officer of the case, at the indication of the appellant. Acquitted co‑accused Rahmat was arrested on 31‑5‑1993. Both the convicted appellant and acquitted co‑accused were challaned and were charged by the Court of Sessions Judge, Kasur on 9‑5‑1994 under section 302/34, P.P.C. and under section 14, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 tit which both of theta pleaded not guilty.

3. At the trial P.W.1 to P.W. 6 were examined on 29-5-1994: The Trial Court was then informed on 23-6-1994 by counsel for the appellant that the appellant wanted to make confessional statement for which grant of a reasonable time was requested. On 3-7-1994 the appellant made a statement in the trial Court that he had filed an application before the Superintendent, District Jail, Knur to the effect that he wanted to make confessional statement before the Court but it was net forwarded. The application was called for from the Superintendent, District Jail, Kasur and Came under judicial scrutiny by the trial Court on 3‑1‑1994: The substantial part of this application written in Urdu and thumb-marked by the appellant and L.Ta, attested arid signed by Deputy Superintendent, District Jail, Kasur do 28‑6-1994 reads: In order to satisfy itself that this confession was voluntary, the trial Court completed the procedure under section 364, Cr.P.C. on 5-7-1994, The substantial pan of the confession reads as under; "On 18-4-1993 at about 8 a.m. Khadim Hussain sun of Muhammad Tufail aged 8‑10 years resident of Sadd Pur was grazing buffaloes etc. I wanted to commit theft of his buffaloes. Therefore, I murdered him by causing Churri blows to him. Therefore, I took away his four buffalos, one small he‑buffalo and one small cow. Rehmat Ali accused was not with me at the time of occurrence. " Immediately after that the trial Court passed the impugned order convicting the appellant and directing or coming up of the remaining prosecution on 12‑7‑1998 against the co‑accused Rahmat Ali who had not confessed, The prosecution completed 14 P.Ws. against co-accused Rahmat Ali, closed its side, and he made statement under section 342, Cr.P.C.; declined try be examined on lath under section 340 (2), Cr.P.C, and did not produce evidence in his defence. Vide judgment dated 24‑10‑1994 co‑accused Rahmat Ali was acquitted by giving him benefit of doubt. One of the reasons shown for acquitting this co‑accused is relevant in the circumstances of the appeal before us. Hence it is reproduced here:‑‑ "It is also noticeable that Muhammad Sadiq accused (since convicted) had also exonerated Rehmat accused in his confessional statement from the commission of the crime charge. " With this background of the case, we proceed to take a judicial notice of certain factors which remain hidden into the heaps of papers into the police records and the records of the trial Court as shall be discussed below.

4. We heard the learned counsel for appellant engaged for him on State expenses, vide order on order sheet dated 23‑1‑1996 and the learned counsel for State. The learned counsel for appellant has contended that the appellant had pleaded not guilty when charge‑sheeted by the trial Court and that after the examination of 6 P.Ws. he had made a confessional statement in the trial Court whereas the trial had not yet concluded. Therefore, his confession had no legal value in the presence of sections 244, 265‑D, 265‑E and 265‑F of Cr.P.C. Consequently the impugned order of conviction was not maintainable. In this context he relied on 1986 P.Cr.LJ 2250 and 1985 P.Cr.LJ

167. The learned counsel for State could not produce any case‑law superseding or alternating the law cited above and submitted that this was a case fit for remand back to the trial Court to be taken up from where it was left i.e. from re‑examination of P.W.7 onwards. Simultaneously he contended that the proposition of remand back was an alternative suggestion or consent on his part otherwise the Jail Criminal Appeal was hopelessly barred by 560 days and that the appeal was admitted to regular hearing on 1‑4‑1996 subject to objection about limitation.

5. We propose to take first of all the contention of State Counsel regarding limitation of appeal. Impugned order was passed on 5‑7‑1994 and Jail Criminal Appeal was received in this Court on 18‑1‑1996 vide Inward No.

139. Hence it was received 550 days from the date of order appealed from. Rule 18(1)(A) of the Federal Shariat Court (Procedure) Rules, 1981 reads:‑‑ "(A) An appeal shall be presented to the Court within sixty days from the date of the order or decision appealed from. Provided the Court may for sufficient cause extend the period. " Rule 19 (1) of the Rules supra reads:‑‑ "(1) Notwithstanding anything contained in rule 17 or rule 18, where an accused is confined in Jail and is not represented by a counsel, he may file an appeal through the Superintendent of the Jail where he is confined'. This Jail Criminal Appeal has been filed through the Superintendent, Central Jail, Lahore vide Outward No.215, dated 14‑1‑1996. Now the question before us as to whether there exists sufficient cause to extend the statutory period of sixty days for filing appeal from the date of order to such a lengthy period of limitation. We have reasons to reply this question in affirmation. A careful reading of the grounds of appeal submitted from Jail alongwith the reading of the application for making confessional statement dated 28‑6‑1994, substantial part of which has already been reproduced above, and the wording of confession under section 364, Cr.P.C. made before the trial Court on 5‑7‑1994 as reproduced above, pursuades us to do so. Grounds Nos.2, 4, 5, 6, 7 of the Memo. of Jail Criminal Appeal read as under:‑‑ The wording of the application for rendering confessional statement and statement under tion 364, Cr .P.C. is an indicator that this confession has been made only to help acquittal of the co-accused end naturally it web done under special circumstances which have remained shrouded in mystery till the mystery is unfolded by the grounds of Appeal reproduced above: This appeal, in the circumstances expounded Above, is corroborated by Zimnis of the record of police, statements of P. Ws. under section 161 Cr. P. C F. I. R. last seen evidence of P.W. 11, P.W.10, P.W:13, unexplained long abscondence of acquitted co‑accused Rahmat has persuaded us to extend the benefit of proviso to Rule 18(1)(A) of the Federal Shariat Court (Procedure) Rules, 1981 and condone the delay in filing the appeal from Jail for sufficient cause which exists.

6. Now we take the only contention of the learned counsel for appellant in this context we are persuaded by a ruling of Peshawar Jurisdiction cited as 1985 P.Cr.LJ. 167 which is quoted verbatim. Ss. 242, 243, 244, 342 & 364 Framing of charges

Once a formal charge framed and put to Accused is denied under S: 242, Cr.P.C. provision of S: 243; held, ipso facto become inoperative And Court ha to proceed under S: 244 by hearing complainant and his evidence and afterwards accused And his evidence in defence-‑-Once evidence of prosecution commences there cannot be staged a retreat to S: 243, Cr:P:C: by procuring A plea of guilty froth Accused end at this stage if Accused malted a voluntary confession game will be recorded within requirements of section 364, Cr.P.C: mid shall be put to Accused for him explanation a incriminating circumstance under section 342 end much e confession, held further, shell not amount to a plea of guilty within meaning of Ss:242 & 243, Cr.P.C: Am to be trade sole bald of conviction by Court: We ere Also persuaded by another citation of ruling of Special Court Sindh at plecentium (a) of 1986 P.Cr.LJ 2250 which reads. "Se, 342, 243, 265-D, 365-E & 265-F Custom Act (IV of 1969), Ss:15d(1)(g) & 185-F Revision Accused pleaded not guilty to charge framed against him and his case was fixed for evidence‑‑ Accused subsequently made an application wherein he pleaded guilty and prayed for leniency in sentence held, second plea on same charge could only be recorded when charge was amended otherwise Courts were not empowered to record other plea‑‑‑Same charge could not be read over Again and Again et will of Accused‑‑‑Plea at later stage would sometime be on understanding on point of quantum of sentence‑Plea could not be equated with confession which could be recorded by competent Magistrate when case was under investigation and there were other legal formalities to be observed in confession:" The learned counsel for State ha consented that the case is a fit one for remand beck for taking it up for trial froth 34‑1904, the date on which confessional statement was recorded by the trial Court and announced conviction on the same date.

10. Although there is lot of material for discussion available before us so far as subsequent judgment of the trial Court acquitting the co‑accused Rahmat is concerned, but since there is no criminal acquittal appeal assailing the said judgment before us, the discussion might prejudice a fair trial of the appellant.

11. The upshot of the discussion is that the impugned order is set aside and the case is remanded back to the trial Court to be taken up once again from 5‑7‑1994 for further proceedings while considering the confessional statement of the appellant as null and void in the eyes of law. N.H.Q./1107/FSC Case remanded.