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Petitioner: Muhammad Naveed VS Respondent: State Honorable Justice Tariq Saleem Sheikh Sardar Muhammad Rafique Dogar
CITATION: 2026 MLD 1244 CASE: 2026L2559 TITLE: Muhammad Naveed VS State Honorable Justice Tariq Saleem Sheikh Sardar Muhammad Rafique Dogar COURT: LAHORE-HIGH-COURT-LAHORE YEAR: 2026 JOURNAL: MLD ============================================================
305 2026 M L D 1244 [Lahore (Multan Bench)] Before Tariq Saleem Sheikh, J Muhammad Naveed ---Petitioner Versus The state and another---Respondents Criminal Miscellaneous No. 8607-B of 2025, decided on 30th October, 2025. Criminal Procedure Code (V of 1898)--- ----Ss. 161, 162 & 497(2)---Penal Code (XLV of 1860), S. 365-B---Juvenile Justice System Act (XXII of 2018), S. 6(3)---Kidnapping, abducting or inducing woman to compel for marriage, etc.---Bail, grant of---Further inquiry---Call Detail Records (CDRs) without voice recording or transcript---Statement recorded by police during physical remand---No substantive evidentiary value---Accused below sixteen years of age---Treatment as bailable offence---Allegations against the accused-petitioner were that he had kidnapped the 13/14 years old daughter of the complainant---Police had obtained CDRs of the petitioner and two other persons---Apart from absence of any voice recording or transcript, there was no material on record to show that the SIM whose CDRs were relied upon by the prosecution was registered in the petitioner's name or was in his exclusive use at the relevant time---It was not disputed that the petitioner's statement was recorded under S. 161, Cr.P.C. while he was in police custody and not before a Magistrate---Such statement might be described as the earliest version of the petitioner on record, though not the first version in the technical sense, as it was not recorded contemporaneously with his arrest but six days later during physical remand---Such statement had no substantive evidentiary value unless the accused affirmed and relied upon it, which the petitioner did not do---Under S. 162(1), Cr.P.C., no statement made by a person to a police officer during investigation, if reduced into writing, could be used as evidence against him at trial---Fact that the Investigating Officer had also video-recorded the statement did not alter its legal character or enhance its admissibility---Video-recorded statement remained a non-substantive piece of evidence and was expressly barred from being used against the accused, except for the limited purpose of contradiction under the conditions prescribed by law; it could not, by itself, justify denial of bail---Petitioner's statement also did not satisfy the legal test of a confession---Narrative described how a girl arrived at his residence late at night and left after a few hours with persons she claimed were her relatives---Petitioner neither admitted participation in her abduction nor acknowledged knowledge of any prior wrongdoing---At most, certain aspects of the account might have appeared unusual or raised suspicion, but viewed as a whole, the statement was exculpatory---Such statement did not amount to a confession and, in any case, having been recorded by police while the petitioner was in custody and not before a Magistrate, it was inadmissible under S. 162, Cr.P.C.---Fact that the petitioner had disowned such statement further excluded any basis for its admissibility, even under the limited 'first version' doctrine---On the available record, there was nothing to indicate that the petitioner had played any direct role in the abduction of the complainant's daughter---Only allegation was that the victim had remained at the petitioner's house for a few hours during the night she went missing---In absence of any other incriminating material linking the petitioner with the offence, the case against him fell within the purview of further inquiry under S. 497(2), Cr.P.C.---Petitioner had produced a copy of his B-form issued by NADRA, showing that he was 15 years and nine months old at the time of alleged occurrence---Petitioner, being below sixteen years at the relevant time, his case fell squarely within the ambit of S. 6(3) of the Juvenile Justice System Act, 2018---Accordingly, petitioner was to be treated as if charged with a bailable offence---In view of the petitioner's age, the nature of material on record and statutory scheme governing bail in such cases, bail application was accepted. Azeem Khan and another v. Mujahid Khan and others 2016 SCMR 274 and Rehmatullah and others v. The State 2024 SCMR 1782 ref. Pakala Narayana Swami v. Emperor AIR 1939 PC 47; Raza and another v. The State and others PLD 2020 SC 523; Shahid Ali v. The State PLD 2026 SC 126; Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others PLD 2019 SC 675; in the Metter of: Application by Hussain Nawaz Sharif s case PLD 2019 SC 196; Mehran v. Ubaid Ullah and others PLD 2024 SC 843 and Sahib Ullah v. The State 2022 SCMR 1806 rel. Sardar Muhammad Rafique Dogar for Petitioner. Muhammad Waheed Rafique, Deputy District Public Prosecutor with Khadija/SP (Investigation), Abbas/SI, Ramzan/SI and Zahid/ AsI for the State. Rana Muhammad Yousaf Noon for the Complainant. Order Tariq Saleem Sheikh, J .--- Through this application, the Petitioner seeks post-arrest bail in case FIR No.793/2025 dated 02.08.2025 registered at Police Station Saddar Shuja-Abad, District Multan, for an offence under section 365-B P.P.C. 2. Brief facts of the case are that on 02.08.2025, Abid Hussain (the Complainant ) lodged FIR No.793/2025 stating that during the night between 29/30.07.2025 his 13/14 years old daughter, A.B., went into the fields to ease herself. When she did not return for a long time, he became worried and, along with Muhammad Altaf and Muhammad Yousaf, set out to search for her but was unable to find any clue. Subsequently, upon inquiring from relatives and other people, he learnt that Moeez and two unknown persons had abducted her. During the investigation, the Investigating Officer obtained certain leads on the basis of which he arrested the Petitioner on 01.09.2025. 3. In support of this application, Sardar Muhammad Rafique Dogar, Advocate, contends that the Petitioner is innocent and has been falsely implicated in this case. There is no evidence, ocular or circumstantial, to connect him with the offence. He further submits that the Petitioner is a juvenile, aged 15 years and nine months, and a student in the first year of ICS. He is entitled to the special protection of the Juvenile Justice System Act, 2018 (JJSA). Under section 6(3) of the Act, a juvenile under the age of sixteen is to be treated as if accused of a bailable offence, regardless of the nature of the charge. The restriction in section 6(4), which permits the court to withhold bail in cases involving heinous offences, applies only where the juvenile is more than sixteen years old. The Petitioner, being below that threshold, falls outside its scope. His continued custody, therefore, is contrary to law. 4. The Deputy District Public Prosecutor (DDPP), assisted by the Complainant s counsel, has vehemently opposed this application. He submits that A.B. is still missing. The police interrogated Moeez, the accused named in the FIR, and several others, including Abid Hussain, Muhammad Jaffar, Fahad Hussain, and Rana Altaf. The Investigating Officer obtained the call data records (CDRs) of their cell phones and, upon analyzing them, formed the view that the Petitioner was also involved in the offence. Further investigations revealed that Moeez and Fahad brought A.B. to the Petitioner s house on a motorbike, where she stayed overnight. On 01.09.2025, the Investigating Officer arrested the Petitioner. On 07.09.2025, while he was on physical remand, the Petitioner provided him a detailed statement, confirming his role. The Investigating Officer reduced that statement to writing, made it part of the case diary, and also video-recorded it. According to the DDPP, that statement implicates the Petitioner. Although he has since retracted it, a video recording is available in the police file, which, the DDPP contends, the Court can validly consider. 5. In rebuttal, Mr. Dogar has argued that the CDR only links Moeez and Fahad not the Petitioner. Even otherwise, it cannot be relied upon because no phone/voice recordings or transcripts of their conversations are available to show the nature of the dialogue between the persons concerned. He has relied upon Azeem Khan and another v. Mujahid Khan and others (2016 SCMR 274), and Rehmatullah and others v. The State (2024 SCMR 1782) to substantiate this contention. Mr. Dogar has further argued that the Petitioner s alleged statement amounts to a confession before a police officer. It is thus inadmissible. The video recording of that statement is also of no legal value. According to him, that recording is illegal by itself. 6. I have heard the counsel at length and examined the record. The police have obtained the CDRs of not only Moeez and Fahad but also those of other suspects, including the Petitioner. Since I am considering a bail application, I would refrain from expressing any opinion on whether those CDRs link the Petitioner to the offence, as it may prejudice any of the parties at trial. In Azeem Khan
and Rehmatullah, the Supreme Court stated that a voice recording or transcript of the conversation is necessary before any inference may be drawn from CDRs. However, that observation was made while deciding the appeal of a convict in a murder case and must be viewed in that specific context. CDRs may form part of the circumstantial evidence and are a useful investigative tool for the police. Nevertheless, their evidentiary worth depends on the availability of corroborative material and the elimination of alternative explanations. Courts must remain mindful that an accused may not have been in possession of the phone at the relevant time or may have intentionally left it elsewhere to create a false alibi. 7. In the present case, apart from the absence of any voice recording or transcript, there is no material on record to show that the SIM whose CDRs are relied upon by the prosecution was registered in the Petitioner s name or was in his exclusive use at the relevant time. While this does not preclude the prosecution from establishing its evidentiary value at trial, for present purposes, the court must approach such material with circumspection. 8. The issue of Petitioner s statement before the police, which he allegedly made on 07.09.2025, and its video recording requires an elaborate discussion. According to the prosecution, he stated: 9. Section 161(1) of the Code of Criminal Procedure 1898 (hereinafter referred to as the Code or Cr.P.C. ) empowers any police officer conducting an investigation under Chapter XIV or any police officer of a rank prescribed by the Provincial Government through a general or special order, acting on that officer s requisition to examine orally any person supposed to be acquainted with the facts and circumstances of the case. 1
Under section 161(2), such a person is bound to answer all questions relating to the case, except those whose answers may expose him to a criminal charge, penalty, or forfeiture. Section 161(3) further provides that the police officer may reduce into writing any statement made during such examination. If he does so, he must record separately the statement of each person examined. 10. Section 162(1), Cr.P.C. mandates that no statement made to a police officer during an investigation shall, if reduced to writing, be signed by the maker. Further, no such statement, or any record of it in a police diary or otherwise, shall be used at any inquiry or trial in respect of an offence under investigation at the time the statement was made, except as stipulated by the Code. Provided that, when a prosecution witness whose statement was so recorded as aforesaid, is called at trial or inquiry, the court must, on the accused s request, refer to that statement and direct that a copy is furnished to the accused so that it may, if duly proved, be used to contradict the witness in accordance with section 145 of the Evidence Act, 1872. 2
If a portion of the statement is used in cross-examination, any part of it may also be used in re-examination solely to explain matters referred to in his cross-examination. However, if the court considers that any part of such statement is not relevant to the inquiry or trial, or whose disclosure is unnecessary in the interest of justice or inexpedient in the public interest, it shall record such opinion (but not the reasons therefor), and shall exclude such part from the copy of the statement furnished to the accused. Section 162(2) clarifies that section 162 does not affect the admissibility of statements falling under section 32(1) or section 27 of the Evidence Act. 3 11. In Pakala Narayana Swami v. Emperor (AIR 1939 PC 47), the Privy Council held that the expression any person in sections 161 and 162, Cr.P.C. must be given its plain and ordinary meaning. It encompasses not only witnesses but also individuals who may subsequently be accused. Thus, a statement made during an investigation, even by someone not initially suspected but later charged, falls within the prohibition under section 162. Their Lordships also addressed the perceived tension between sections 25 to 27 of the Evidence Act, 1872, 4 and section 162, Cr.P.C. It was argued that a literal construction of section 162 would effectively nullify section 27, as statements made to the police during an investigation, even if they resulted in a discovery, would become inadmissible. The Privy Council rejected this view, holding that these provisions could coexist: section 162 applies to statements made to police officers during investigation; section 25 applies to confessions made to police officers outside the investigation process; and section 27 operates as a proviso to section 26 and governs statements made in custody to any person, including, for example, fellow prisoners, doctors, or visitors, which are not covered by section 162. The Privy Council concluded that it was unnecessary to determine whether section 162 overrides section 27. However, it underscored that no statement containing a self-exculpatory element can amount to a confession if that element, if true, would negate the offence. A valid confession must admit, either expressly or by necessary implication, the commission of the offence or substantially all the facts constituting it. In contrast, a statement that merely admits gravely incriminating facts, but falls short of acknowledging guilt, is not a confession. 12. The Supreme Court of Pakistan approvingly cited the above exposition of law in Raza and another v. The State and others (PLD 2020 SC 523). It further held that the statement of an accused after their arrest or during investigation is covered by section 161, Cr.P.C. Over time, this category of statements has come to be referred to as the first version or, interchangeably, as the first plea of the accused. Syed Mansoor Ali Shah J. observed that a statement made by an accused to a police officer may take various forms: (i) a confession of guilt, (ii) a denial of the offence, or (iii) an admission coupled with an explanatory narrative. His Lordship ruled that a statement (first version) made by an accused before a police officer, though not substantive evidence, is relevant and admissible. It is not barred under Article 38 of the QSO or section 162, Cr.P.C., if used by the accused in his own favour. His Lordship explained: First version is a statement made before a police officer which is not otherwise admissible under section 162, Cr.P.C., except in the case of a confessional statement to be used by the accused in his favour By itself [it] has no special evidentiary value or weight. Once it is relevant and admissible it is to be examined in the light of the overall evidence of the case i.e., the statement of the accused recorded under section 342, Cr.P.C., his statement, if any, under section 340(2) of the Cr.P.C along with the defence evidence, if any, and the overall evidence of the prosecution. The attribution of high probative value to the first version of the accused, in some cases, pretending it as a principle of law, has no basis in criminal jurisprudence. 13. In Shahid Ali v. The State (PLD 2026 SC 126), the Supreme Court reiterated that a confession made to a police officer is inadmissible under Article 38 of the QSO, even if made in the presence of a Magistrate. A statement made while in police custody, even to a third party, is inadmissible under Article 39 unless recorded in the immediate presence of a Magistrate. The evidentiary scope of such statements is strictly governed by Articles 39 and 40. If the accused voluntarily wishes to confess, the police must follow the statutory procedure outlined in section 164 read with section 364, Cr.P.C. The Court observed that even a confession made to a journalist while the accused is in police custody, and any video or publication thereof, is inadmissible unless it falls within the limited exception under Article 40. The Court further cautioned that procedural safeguards cannot be bypassed by giving third parties access to an accused in custody, as this risks undermining the role of the Magistrate and the procedural safeguards prescribed by law. 14. The above-cited judgments were rendered on appeal. Nevertheless, the legal principles articulated therein are not confined to the trial stage. They are grounded in the right to a fair trial guaranteed under Article 10A of the Constitution, which applies at all stages of a criminal case, including the bail stage. In the present case, it is not disputed that the Petitioner s statement was recorded under section 161, Cr.P.C. while he was in police custody and not before a Magistrate. It may be described as his earliest version on record, though not the first version in the technical sense, as it was not recorded contemporaneously with his arrest but rather six days later during physical remand. Such a statement has no substantive evidentiary value unless the accused affirms and relies upon it. The Petitioner does not do so here. Under section 162(1), Cr.P.C., no statement made by a person to a police officer during an investigation, if reduced to writing, can be used as evidence against him at trial. The fact that the Investigating Officer also video-recorded the statement does not alter its legal character or enhance its admissibility. It remains a non-substantive piece of evidence and is expressly barred from being used against the accused, except for the limited purpose of contradiction under the conditions prescribed by law. It cannot, by itself, justify the denial of bail. 15. A video recording must be proved genuine, and shown to be free from tampering in accordance with the guidelines laid down in Ishtiaq Ahmed Mirza and others v. Federation of Pakistan and others (PLD 2019 SC 675), insofar as they may be relevant, before it can be used. However, the legal principle that a statement made by a witness to the police during an investigation cannot be used as substantive evidence applies equally to video-recorded statements even where video recording is used to facilitate documentation. 16. The Petitioner s statement reproduced in paragraph 8 above does not satisfy the legal test of a confession as articulated in Pakala Narayana Swami (supra). The narrative describes how a girl arrived at his residence late at night, and left after a few hours with people she claimed were her relatives. The Petitioner neither admits participation in her abduction nor acknowledges knowledge of any prior wrongdoing. At most, certain aspects of the account may appear unusual or raise suspicion, but viewed as a whole, the statement is exculpatory. It does not amount to a confession and, in any case, having been recorded by the police while the Petitioner was in custody and not before a Magistrate, it is inadmissible under section 162, Cr.P.C. The fact that the Petitioner now disowns this statement further excludes any basis for its admissibility, even under the limited first version doctrine. 17. Here, I must refer to the case reported as PLD 2019 SC 196 (In the matter of: Application by Hussain Nawaz Sharif) . 5 In that case, the applicant requested the Supreme Court to restrain the Joint Investigation Team (JIT) from video recording the proceedings relating to the examination and interrogation of witnesses. It was argued that sections 161 and 162, Cr.P.C. prescribe a specific manner for examining persons acquainted with the facts of the case, and that any deviation from that procedure, including audio-video recording, would be unlawful. It was further submitted that since section 162(1), Cr.P.C. prohibits even the signing of such statements, recording them by electronic means was impermissible. The Supreme Court disagreed. It held that sections 161 and 162, Cr.P.C. do not prohibit the use of technology for investigation, provided that only the written transcript (not the recording) is relied upon at trial. The Court emphasized that electronic recording does not, by itself, enhance the evidentiary value of the statement or compromise the witness s freedom to testify. It is, however, important to note that the judgment pertained to statements of witnesses and did not involve a confession or custodial statement by an accused. It therefore does not affect the settled position that a statement made by an accused in police custody, even if video recorded, is inadmissible under section 162, Cr.P.C. unless recorded before a Magistrate under section 164. 18. The DDPP argues that the Supreme Court s observations in PLD 2019 SC 196 (Hussain Nawaz Sharif) concerning video-recording of witness statements should also apply to statements made by the accused. I am unable to agree. In the investigative context of Pakistan, video-recording the statement of an accused can create the following risks: (a) A video can create a misleading appearance of voluntariness even if the accused was threatened or tortured off-camera, (b) The recording may commence after coercion has already occurred, so the recorded part looks clear, (c) Courts (and the public) might over-trust the apparent authenticity of the video evidence, forgetting that coercion happens invisibly. The video-recorded statement of an accused, particularly when it amounts to confession or something near to it, may prejudice the mind of a judge, even if he ultimately does not rely on it while making the final order in view of the prohibitions contained in section 161, Cr.P.C., (d) if police are allowed to video-record the statement of the accused, it would blur the line between a section 161 statement and a section 164 confession. 19. Comparative experience offers cautionary lessons. In the United Kingdom, before the enactment of the Police and Criminal Evidence Act 1984 (PACE), police routinely took unrecorded statements and confessions, which caused instances of serious miscarriage of justice. PACE introduced structured safeguards and helped reduce coercion and fabrication in custodial interviews. In India, section 161(3) of the Code of Criminal Procedure, 1973 contained an express proviso permitting the audio-video recording of statements. It read: Provided that a statement made under this subsection may also be recorded by audio-video electronic means. 6 This legislative intervention recognized the use of technology in investigations, but did not itself prescribe safeguards to ensure the voluntariness or integrity of such recordings, a gap that was sometimes addressed through judicial decisions. If Pakistan intends to adopt a similar practice, it must do so through legislation and provide adequate safeguards to protect the rights of the accused against potential abuse under the guise of technology. 20. In view of the above, the Petitioner s video-recorded statement is inadmissible. It cannot be relied upon for any evidentiary purpose, even at the bail stage, because of the bar contained in section 162, Cr.P.C. The prosecution s reliance on the transcript, whether or not it exists in parallel to the video, makes no difference. That statement aside, the Petitioner s role must be assessed on the strength of the remaining material. On the available record, there is nothing to indicate that he played any direct role in A.B. s abduction. The only allegation is that A.B. remained in his house for a few hours during the night she went missing. In the absence of any other incriminating material linking him to the offence, the case against him falls within the purview of further inquiry under section 497(2), Cr.P.C. 21. Now, I turn to the Petitioner s plea regarding juvenility. In Mehran v. Ubaid Ullah and others (PLD 2024 SC 843) , the Supreme Court affirmed that juveniles are fundamentally distinct from adults and therefore require a separate justice…
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