2004 PLP 863 (YLR)

3-A. The prosecution had already examined as many as twelve prosecution witnesses. On 10-6-2003, the statement of Ali Asghar son of Imam Din in examination-in-chief was recorded by the learned trial Court as P.W.13. During the course of examination, the said witness made the following statement:-- "On 11-3-2003, I and Rashad Mehmud P.W. went to Police Post Kala Gujran. The Investigating Officer Muhammad Aslam, S.-I. was interrogating Muhammad Riaz accused present in Court and in our presence during interrogation offered to lead to the place where the dead body of the deceased was lying and where he ,had thrown the dead body by means of a tractor and also offered to lead to the recovery of the tractor which vas used in transporting the dead body."

4. The same witness went on to make further statement in examination-in-chief as under:-- "Again on 14-3-2003, I joined the investigation of this case at Police Station Saddar alongwith Rashad Mehmud, P.W. The Investigating Officer was interrogating Amjad Farooq accused, and during interrogation, the accused offered to lead to the recovery of hatchet. He, also led to the recovery of the place where the dead body of Mst. Surriya Sultana, was kept and where the dead body was concealed and ultimately thrown.

5. The learned counsel for the petitioner/accused raised objection to the aforesaid portion of oral evidence of the P.W. as according to him such a statement was inadmissible in evidence as it was hit by Article 40 of the Qanun-e-Shahadat Order, 1984. It was contended that deposition made on 11-3-2003 regarding the place where the dead body of the deceased was stated to be lying and where the same was statedly thrown by Muhammad Riaz accused did not constitute discovery of a fact made in consequence of information received from a person accused. Same objection was raised in respect of the statement regarding the statement of Amjad Farooq accused which also allegedly led to the discovery of the place where the dead body of Mst. Surriya Sultana was kept and where the dead body was concealed and ultimately thrown. The learned counsel in order to substantiate his contention has placed reliance on Asif Jameel and others v. The State 2003 MLD 676 and Abdul Sattar v. The State PLD 1976 SC 404. 5-A. According to the learned counsel for the petitioner the portion of the statement whereby the place of occurrence is pointed out is inadmissible in evidence as according to the prosecution case itself, the place where the dead body was found came into the knowledge of the complainant on 25-2-2003. As, such no new discovery in consequence of information received from a person accused was made and thus could not be allowed to be recorded under section 40 of Qanun-e-Shahadat Order 1984. The learned trial Court rejected this objection vide order dated 10-6-2003 on the ground that information received from the accused led to the pointation of different places where the dead body was kept concealed and thrown and thus amounted to a discovery under Article 40 ibid.

6. The learned counsel for the parties have been heard and record perused.

7. Article 40 of Qanun-e-Shahadat Order, 1984 provides as under:-- "How much information received from accused may be proved.

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 a confession or not, as relates distinctly to the fact thereby discovered, may be proved."

8. According to Article 38, no confession made to a police officer shall be proved as, against a person accused of any offence. Article 39 enunciates the rule further in that it 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.

9. Article 40 reproduced above" operates as a proviso to these two Articles. In order to make any such information admissible, it is required to be established by the prosecution that any article or other evidence discovered during the investigation of the case in consequence of information supplied by the accused connects him with the crime.

10. The learned counsel for the petitioner is partly correct in submitting that the place where the dead body was found lying was within the knowledge of the prosecution since at least 25-2-2003 as per contents of the F.I.R. itself and the statement of P.W.13 to this extent could not be treated as a discovery under Article 40 and to this extent the statement is in admissible. However, that part of the statement of P.W.13, wherein, he stated that during the interrogation of Amjad Farooq accused, the latter led to the recovery of the place where the dead body of Mst. Surriya Sultana was kept and where the dead body was concealed before it was ultimately thrown at the place from where it was ultimately recovered, would constitute discovery of fact in consequence of information received from the person accused. The learned counsel for the petitioner has not been able to point out from the record if this information regarding the place where the dead body was kept and was concealed before it was finally thrown in "Maira" within the area of village "Kuntrila" was already in the knowledge of the prosecution.

11. This being the case the criminal revision is only partly accepted to the extent that the statement of P.W.13 shall be deemed to be inadmissible as far as it relates to the information regarding the place where the dead body was thrown and found lying in "Maim" within the area of Kuntrila. To the extent of statement regarding the interrogation of Amjad Farooq co-accused wherein, he is stated to have led to the discovery of the place where the dead body of the deceased was kept and where the dead body was concealed before it was thrown shall be deemed to be admissible evidence under Article 40 of the Qannn-e-Shahadat Order, 1984. The criminal revision disposed of in the above terms. H.B.T./M-2039/L Order accordingly.