2000 M (PLP)

"The perusal of the alleged judicial confessional statement of accused reflects that accused Amjad Ali denied about the commission of offence but has disclosed certain facts of the incident which have been reduced in writing by the learned Magistrate in the pro forma prescribed for the confessional statement to which the defence theory is being maintained by the accused. In view of these circumstances I am of the humble view that the production of alleged confessional statement of accused on record will help the Court to ascertain the facts of the incident. Therefore, the application is allowed to the extent that the same be brought on record through Dy. D.‑A. for the purpose of judicial notice to the contents of the statement admittedly made by the accused. "

3. Learned counsel for the applicant contends that the statement which is sought to be relied upon by the trial Court is a self‑culpatory statement and not confessional statement. He relied upon cases of Kazi Pervaiz Iqbal and others v. State (PLD 1976 Karachi 283), Ghulam Khan v. State (PLD 1971 Karachi 200 and Noor Muhammad alias Nur Ahmed and others v. State (PLD 1965 Dacca 204): and secondly that the trial Court cannot take judicial note of such a statement as it is beyond the purview of Article 111, Qanun‑e Shahadat Order, 1984 and lastly that the evidence which is taken judicial notice of it cannot be taken into consideration without providing an opportunity to the accused to rebut the same. Learned counsel relied upon 1976 PLD Karachi 583 and PLD 1971 Karachi 20.

4. I have heard the learned counsel for the applicant and so also Mr. Nidamuddin Brohi, for the State.

5. Mr. A.R. Farooque Pirzada who was appearing for the respondent though appeared on the previous dates is absent without any, intimation.

6. After the prosecution had closed the side, admittedly the statement of the accused was recorded under section 342, Cr.P.C. Subsequently learned counsel for the complainant moved an application under section 540, Cr.P.C. to examine. Joint Civil Judge/FCM, who recorded confessional statement of accused or alternately take Judicial Notice of such confessional statements in terms of orders reproduced in para. 2 (supra). 7. 1 have perused the cases cited by the learned counsel for the applicant in support of his contention. The case reported as "Kazi Pervaiz Iqbal and others" (PLD 1976 Karachi 583) was decided in appeal against. conviction recorded on merits and in that case it was held that self -exculpatory statement cannot be recorded as confession and is of no value. The case of "Gulab Khan" is a decision in appeal, where the conviction was recorded by the Trial Court and it was held in that such statement does not amount to confession and the last case of Noor Muhammad alias Nur Ahmed by a Division Bench also proceeded on an appeal filed against confession which end to show that the self‑exculpatory statement of a person having no connection with the crime. All the cases cited above are on merit after the trial Court had considered the 'statement' as confessional, or otherwise and gave a final verdict. In the instant case, before the final verdict, the application has approached this Court, as such none of the case is applicable. The case in hand shows that the statement of the accused was by the learned trial Court and in cross‑examination, he has stated as "I did not make complaint to the Mohalla people or any other remark about the misbehaving conduct of Dilsher. On the next day of my custody I was produced before the Magistrate for my confessional statement where I had stated about the committing of

9. From the admission of the accused himself it appears that same statement was recorded before the Magistrate. The trial Court while deciding the application after due notice to both the parties has merely ordered that statement of the accused before the Magistrate is taken on record for consideration for whatever it is worth. The trial Court has not expressed its verdict as to the nature of the statement whether it is confessional or exculpatory; same is to be decided by the Trial Court after taking all the facts, and circumstances into consideration.

10. Superior Courts have always appreciated the trial on merit , and depreciated piecemeal or fragmentary decision in pending cases, as such expression of opinion tends to influence the decision of trial Court, which may be prejudicial to any of the party; such interference is always to be avoided in exercise of revisional jurisdiction at interlecutory stage mere particularly when the case is at final stage of arguments.

11. Parties must avoid soliciting fragmentary decision on interlocutory proceedings, as all such findings and orders get merged in the final decision and are always amenable to scrutiny and correction in the exercise of revisional and appellate jurisdiction.

12. No prejudice is shown to have been caused to the applicant. Impugned order is just and proper does not call for any interference.

13. Learned counsel, in the last vainly contended that counsel for the complainant under section 495, Cr.P.C., is not authorised to file any application directly and could have acted under the dictate and command of Public Prosecutor; technically speaking he may be correct, but law favours adjudication on merits; Code of Criminal Procedure like all other procedural law provides mechanism to foster the cause of justice and not to hamper the same, too stringent an interpretation would not any way advance the cause of justice, more particularly when the case of applicant/accused is not prejudiced and he will get full and fair chance to defend himself.

14. One must not lose sight of the fact, that Courts of law are not to sit as silent spectators, if Public Prosecutor for any reason fails or neglects to discharge his duties; the Court as guardian of law is required to act in furtherance to the cause of justice. In the instant case notice of the application under section 540, Cr.P.C. was given to the applicant as well as Public Prosecutor, no prejudice on this account has been shown to have been caused. Code of Criminal Procedure is provided to promote the cause of justice and technicalities and procedural intricacies are never allowed to impede the cause of justice

15. Revision application is dismissed in limine alongwith listed application. The trial Court is directed to conclude the proceedings as expeditiously as possible. The order staying the proceedings is also recalled. H.B.T./A‑14/K Revision dismissed.