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Petitioner: Raza and another VS Respondent: The State and 2 others
Court Name: Supreme Court of Pakistan Judge(s):Syed Mansoor Ali Shah, Manzoor Ahmad Malik, Sayyed Muhammad
Mazahar Ali Akbar Naqvi Title: Raza and another vs The State and 2 others Case No.: Criminal Petitions Nos. 1124-L and 1120-L of 2015 Date of Judgment:2020-06-25 Reported As: PLD 2020 Supreme Court 523 Result: Order accordingly Judgment ORDER SAYYED MAZAHAR ALI AKBAR NAQVI, J.- Criminal petition for leave to appeal under section 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been assailed by the petitioner calling in question impugned judgment dated 14.09.2015 passed by Lahore High Court, Lahore in Murder Reference No.276 of 2011 and Crl. Appeal No.996 of 201 1. 2. As per prosecution story portrayed in the FIR No.203/2009 dated 04.06.2009, offence under section 302, P.P.C. registered with Police Station Saddar Farooqabad Sheikhupura (Exh.PD) lodged at the instance of one Allah Ditta son of Lai Din, (P,W-3) is that he is resident of Herchand and they are three brothers and he is eldest. The complainant and his younger brother Qurban reside with their parents at Herchan d whereas brother Ramzan live separately . On 03.05.2009 at evening, the complainant along with his father came to the house of brother Muhammad Ramzan because his daughter was sick. They were talking to each other when at about 7:00 p.m. Raza son of Niaz i.e. a neighbor of Ramzan called him outside. The complainant with father also came out of the house along with Ramzan. Ayisha Bibi wife of Ramzan followed and came out of the house. Raza was armed with Carbine, he raised lalkara to Muhammad Ramzan that he had entered into an altercation with his mother , therefore, he will teach a lesson and thereafter accused made a fire shot with his Carbine 12 bore which hit Muhammad Ramzan on his abdomen, below the chest. Muhammad Ramzan fell down being injured whereas accused fled away from there. The occurrence was witnessed by the complainant, his father and Bhabi Ayisha. The injured was taken to Sheikhupura Hospital but he was referred to Mayo Hospital, Lahore. Initially the FIR was registered under Section 324, P .P.C. but when the injured died on 08.05.2009, of fence under Section 302, P .P.C. was added. 3. After registration of the aforesaid case, investigation was carried out and petitioner was challaned while placing his name in column No.3 of the report under Section 173, Cr.P.C. On receipt of challan, the learned Trial Court
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formally charge sheeted the petitioner vide order dated 12.08.2010 to which he pleaded not guilty and claimed trial. Prosecution in order to substantiate its case produced as many as 13 witnesses. The petitioner was examined under Section 342, Cr.P.C, however , he opted not to appear in his defence as his own witness in terms of Section 340(2), Cr .P.C. to disproof the allegations levelled against him. 4. The learned trial court after conclusion of trial found that the prosecution succee ded to prove allegations against the petitioner , hence convicted him under section 302(b), P.P.C. and sentenced him to death. The petitioner was further burdened to pay compensation of Rs.1.00,000/- to be paid to the legal heirs of the deceased in terms of Section 544-A, Cr .P.C. In default thereof, he was further ordered to undergo simple imprisonment for six months. 5. The petitioner being aggrieved by the judgment of the learned trial court dated 07.06.201 1 filed Criminal Appeal No.996 of 2011 before the Lahore High Court, Lahore whereas the learned trial court forwarded Murder Reference No.276 of 2011 for confirmation of the sentence of death inflicted upon the petitioner in terms of Section 374, Cr.P.C. The learned Division Bench of High Court vide judgment dated 14.09.2015 converted death sentence of the petitioner into imprisonment for life where as amount of compensation and imprison ment in its default prescribed by the learned Trial Court was ordered to be maintained. Benefit of Section 382-B, Cr.P.C. was also given to him. Hence, instant petition. 6. At the very outset, learned counsel for the petitioner argued that in fact both the courts below have not attended the circumstances of the case in its true perspective and convicted the petitioner under Section 302(b), P.P.C., which is not substantiated from the record. Contends that as far as occurrence is concerned, the same has been admitted by the petitioner while making his statement under Section 342, Cr.P.C. Adds that a specific plea was taken by the petitioner before the Investigation Officer that the deceased made an attempt to commit rape with sister of the petitioner namely Saima Sibi. Contends that plea of the petitioner was found correct during the course of investigation as such the conviction and sentence recorded by learned Courts below is not sustainable in the eye of law Contends that when it is establish ed from the record that petitioner has committed the occurrence on the question of 'ghairat', therefore, the petitioner is entitled for the benefit of the same and as such the appropriate sentence could be under Section 302kc), P . 7. On the other hand, learned Law Officer has not seriously controverted the contentions raised by learned counsel for the petitioner as the same is spelled out from the record. 8. We have heard the learned counsel for the parties and gone through the record. 9. Admittedly , the occurrence had taken place within the local limits of Police Station Saddar Farooqabad, District Sheikhupura. There is no denial to this fact that the allegation against the petitioner is that he caused fire-arm injury with Carbine, which landed on the abdomen near the chest of the deceased Muhammad Ramzan. The injured was taken to District Headquarter Hospital, Sheikhupura from where he was referred to Mayo Hospital, Lahore however , he succumbed to the injuries op 08.05.2009 and as such the provision of Section 302, P.P.C. was added in the crime report. The petitioner since his arrest and commencement of investigation has raised first plea wherein it has been mentioned that deceased had made an attempt to commit rape with his sister. The mother of petitioner Maqsoodan Bibi had gone to reprimand Muhammad Ramzan deceased upon which he started abusing mother of the petitioner and also grappled with her. The petitioner approached there he could not afford the conduct of the deceased and as such he flared up and under the heat of passion could not resist and as such made a single fire shot. The stance taken by the petitioner remained consistent throughout during the course of investigation as well as the trial. During investigation, the first plea raised by the petitioner was found correct by the Investigating Officer. It is an admitted fact that first plea of the accused is admissible in evidence under Article 27 of the Qanun-e- Shahadat Order , 1984 ("Order of 1984 "). Article 27 of Order 1984 is general principle enabling the Investigating Officer to record the same whereas Article 28 is mere an exception, As a general rule evidence not forming part of the transaction is not admissible whereas Articles 27/28 are an exceptions to the said general principle by laying down a rule that admissibility of those fact which might not be tendered in evidence to prove it but these are relevant to prove the status/ mind the person committing it. For example the guilt, intent, knowledge, negligence, malice etc., and in all the intentions qua these conditions would be admissible as it is provided under Article 27 of the Order of 1984 , Article 27 of the Order of 1984 has extended the scope to meet the question qua the existence
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of person state of mind or bodily feeling and all these facts and their existence in the state of affair has turned relevant. During the course of proceedings before the learned Trial Court, the suggestion qua the state of mind referred above was also put to .the prosecution witnesses of ocular account PW-3 and PW-4, respectively . Now the question, which requires determination , only relates to the quantum of sentence in the given facts and circumstances narrated above. 10. As observed earlier , that the occurrence had taken place due to the act of the deceased, which enraged the mental faculty of the petitioner and under the impulses of the same the instant occurrence had taken place, the same is spelled out from the record and as such the benefit of the same is available for which so many circumstances are not required rather the glimpse of the same is always deemed sufficient, which has been established by the Superior Court from time to time. 11. For what has been discussed above, we are of the considered view that sentence inflicted upon the petitioner by learned Courts below under . Section 302(b), P.P.C. is not made out, therefore, keeping in view the facts narrated above, instant petition is converted into appeal and same is partially allowed and we convert the sentence from imprisonment for life under Section 302(b), P.P.C. to imprisonment for 10 years under Section 302(c), P.P.C. whereas amount of compensation and imprisonment in its default prescribed by the learned Trial Court is ordered to be maintained, Benefit of Section 382-B, Cr.P.C. is also extended, The Crl. Petition No.1120(L)/2015 filed by the complainant for enhancement of sentence, having no substance, is dismissed . See para 43. Sd/- Manzoor Ahmad Malik, J I disagree with the reasoning of my learned brother and therefore have appended my own judgment. Sd/- Syed Mansoor Ali Shah, J Sd/- Sayyed Mazahar Ali Akbar Naqvi, J JUDGMENT 12. SYED MANSOOR ALI SHAH, J.---I have had the opportunity of going through the order of my learned brother Sayyad Mazahar Ali Akbar Naqvi J. While I agree with the conclusion regarding the conviction and quantum of sentence awarded to the petitioner under section 302(c) instead of section 302(b) of the Pakistan Penal Code, 1860 ("P.P.C."), however , with respect, I find myself unable to agree with the reasoning in paragraphs 9 and 10 of the Order of my learned brother . 13. In the instant case, the First Information Report by the complainant Allah Ditta (PW-3), records that on 03.05.2009 around 7 p.m., Raza ("petitioner ") called his neighbour , Ramzan ("deceased "), to come out of his house. As soon as Ramzan came out in the street outside his house, the petitioner shot him with his 12 bore carbine in the belly. Ramzan suffered several injuries all over the abdomen and the chest. He was rushed to the local hospital in Sheikhupura and then to hospital in Lahore but unfortunately he succumbed to his injuries on 08.05.2009. Motive behind this gory incident, as reported, was the quarrel between the mother of the petitioner and the deceased. In this background the petitioner was sent up for trial. He was convicted for murder under section 302(b), P.P.C. and sentenced to death by the trial court and upon appeal to the High Court his conviction was maintained but his sentence was reduced to imprisonment for life, while the remaining sentence awarded by the trial court was kept intact vide impugned judgment dated 14.09.2015. 14. Main reliance of the prosecution evidence is on the ocular account of PW-3 and PW-4; the brother and wife of the deceased who witnessed the crime; and the medical evidence which supports the ocular account. On the other hand, the defence plea of the petitioner (accused) in the statement under section 342 of the Criminal Procedure Code, 1898 ("Cr.P.C.") is that he acted under grave and sudden provocation as the deceased attempt ed to rape his., sister and then abused and grappled with his mother . This was also the first version taken by the petitioner (accused) before the investigating Police Of ficer after his arrest.1 2
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15. In a criminal trial, it is now jurisprudentially settled that the proper course for the court is to first discuss and assess the prosecution evidence in order to arrive at the conclusion as to whether or not the prosecution has succeeded in proving the charge against the accused on the basis of the evidence. In case where the accused has taken a specific plea the court is to appreciate the prosecution evidence and the defence version in juxtaposition in order to arrive at a just conclusion. 16. In the present case, the statement of the petitioner under section 342, ,Cr.P.C. refers to the statement (first version) of the petitioner made before the Police Officer after his arrest. Therefore, before appraising the prosecution evidence and the defence version, it is imperative to answer the following important legal questions that have arisen in this case: (i) What is the provision of law under which the statement of an accused is recorded by the Police Officer during the investigation? (ii) Whether the statement of the accused recorded by the Police Officer during .investigation is relevant and admissible, particularly in view of the bar contained in Article 38 of the Qanun-e-Shandat Order , 1984 ("QSO ") and Section 162 of the Cr .P.C. ? (iii) What is the meaning and scope of Article 27 of the QSO and its applicability to the present case? (iv) Whether reasonable possibility of the defence plea of being true can benefit the accused? 17. I endeavour to answer the above questions as under:-- (i) What is the provision of law under which the statement of an accused is recorded by the investigating Police Of ficer during investigation? There is no specific provision under Cr.P.C that deals with the recording of the statement of the accused during police investigation. High Courts in British India had divergent opinions on the applicability of Sections 161 and 162, Cr.P.C to the statements of accused persons recorded by investigating officers in the course of investigation. This conflict of opinion was resolved by the decision of the Privy Council in Pakala Narayana Swamy . While discussing the phrase "any person" under section 162, Cr.P.C. Lord Atkin, observed: "That the words in their ordinary meaning would include any person though he may thereafter be accused seems plain. Investigation into crime often includes the examination of a number of persons none of whom Or all of whom may be suspected at the time ... but eventually accused." A full bench of the Allahabad High Court observed in Upadhyayd. "After the decision of the Privy Council ... it is no longer possible to accept the argument that sections 161 and 162 Criminal Procedure Code do not cover statements made by accused persons and that under those sections an investigating officer is not authorised to record the statements of such persons. Nor is there anything in the section to show that only non-confessional or non-incriminatory statements of such accused persons can be recorded. The words used are wide enough to include all kinds of statements, provided of course, they throw some light on the offences under investigation." Likewise, Dorab Patel, J., in Ghulam Hussain, observed: "After the Judicial Committee's observations in Naryana Swami's case it cannot even be argued that statements by the accused do not fall within the ambit of section 162 of the Code." 18. The relevant extracts of Sections 161 and 162 are reproduced hereunder:- "161. Examination of witnesses by police .--(1) Any Police-of ficer making an investigation under this Chapter or any police-of ficer not below such rank as the Provincial Government may by general or special order , prescribe in this behalf, acting on the requisition of such officer may examine orally any person supposed to be acquainted with the facts and circumstances of the case. _____ _____ 162. Statements to police not to be signed: Use of such statements in evidence . (1) No statement made by any person to a police-of ficer in the course of an investigation under this Chapter shall if reduced into writing be signed by the person making it; nor shall any such statement or any record there of, whether In a police-diary or otherwise or any part of such statement or record, be used for any purpose (save as hereinafter provided) at any inquiry or trial in respect of any of fence under investigation at the time when such statement was made. ____3 4 5 6
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____ This expression "any person" has to be understood in the context of section 161, Cr.P.C. It requires a police officer making an investigation to examine "any person" supposed to be acquainted with the facts and circumstances of the case. This expression is extensive and, in its plain and ordinary meaning, includes all persons who are supposed to be acquainted with the facts and circumstances of the case, and not only the witnesses but also those who are alleged to have committed the offence under investigation in a case. A person who is alleged to have committed the offence, is as much supposed to be acquainted with the facts and circumstances of the case as an alleged eye-witness is. There is no reason to modify or restrict that plain and ordinary meaning of the expression "any person" by interpretation, especially when it does not present any absurdity or inconsistency. "If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in their natural and ordinary sense. The words themselves alone do in such case best declare the intention of the law-giver." Besides "when the meaning of the words is plain it is not the duty of the courts to busy themselves with the supposed intentions". I see no reason to restrict the simple meaning of the phrase "any person" and exclude the "accused" from its ambit. 19. In a recent decision of this Court in Sughran Bibi, a seven-member bench of this Court in to which one of us (Malik, J.) was a member , supports this interpretation. Khosa, ACJ., speaking for the bench therein declared that: "During the investigation conducted after registration of an FIR the investigating officer may record any number of versions of the same incident brought to his notice by different persons which versions are to be recorded by him under section 161, Cr.P.C. in the same case. No separate FIR is to be recorded for any new version of the same incident brought to the notice of the investigating officer during the investigation of the case." It is common that in most cases a version of the same occurrence different from the one recorded in FIR is given by the accused, as it happened in the present case. And in view of the law declared in Sughran Bibi, it can be said with certainty that such version of an accused is to be, and is, recorded under section 161, Cr .P.C. 20. The answer to the above question is that the statement of the accused after his arrest or during investigation is covered by section 161, Cr .P.C. (ii) Whether the statement of the accused recorded by the investigating Police Officer during investigation is relevant and admissible, particularly in view of the bar contained in Article 38 of the QSO and Section 162 of the Cr .P. C? 21. The term "relevant" means what is logically probative and "admissible" means that which is legally receivable. The legal admissibility of facts is for the most part determined by their logical releva ncy to the issue. Admissibility is determined according to the rule of evidence, while the relevancy of a fact is determined by the issue in a case. " The scheme of the QSO is to make all relevant facts admissible, as said by Lord Hobhouse, that "relevant in this Act means admissible". 22. Statement made by the accused, after his arrest, before the Police Officer may include a statement (i) where he admits the commission of the crime and therefore amounts to a confession; or (ii) where the accused denies the commission of the crime; or (iii) the accused admits the commission of the crime but gives his own version of it. Out of the above three, we specially examine the last category of statement (version), as the same is relevant in this case. 23. "Confession" has been defined as an admission made at any time by a person charged with a crime, stating or suggesting the inference that he committed that crime. The Privy Council in Pakala Narayana Swami defined confession as a statement made by an accused which "either admit in terms the offence, or at any rate substantially all the facts which constitute the offence." A confession is thus a species of admission, and can briefly be stated to be an admission of the guilt by the accused. The expression "confession" has been used in Articles 37 to 43, QSO, but it is not defined there in. There is a distinction between admissions and confessions. It would appear that confessions are a species of which admission is the genus. All admissions are not confessions, but all confessions are admissions. If the statem ent by itself is sufficient to prove the guilt of the maker , it is a confession. If, on the other hand, the statement falls short of it, it amounts to an admission. No statement, which contains self-exculpatory matter , can amount to a confession, if the exculpatory statement is of some fact which, if true,7 8 9 10 11 12 13 14 15 16 17
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would negate the guilt. A confession is thus an admission by an accused in a criminal case and if he does not incriminate himself, the statement 1-1 cannot be said to be a confession. 24. Article 37 of QSO provides that a confession is irrelevant if caused by inducement, etc. and Article 41 provides that if the inducement, etc. mentioned in Article 37 is removed, confession becomes relevant. Joint reading of Articles 37 and 41 leads to an unambiguous corollary that a voluntary confession of the accused is a relevant fact under QSO. 25. Article 38, QSO states that no confess ion made to a police officer shall be proved as against a person accused of any offence. Section 162, Cr.P.C declares that no statement made by any person to a police-of ficer in the course of an investigation shall be used for any purpose at any inquiry or trial in respect of any offence under investigation at the time when such statement was made, except the statement of a prosecution witness to contradict him in cross-examination, or to explain any matter referred to in cross-examination of that witness in re-examination. The question which has remained under judicial debate since 1872 is whether Article 38, QSO and Section 162, Cr.P.C. bar the admissibility of a confessional statement of an accused, which is used by the accused in his favour . Bar of Article 38, QSO 26. Article 38 states that no confession made to a police officer shall be proved as against a person accused of any offence. What if the confession is to be used by the accused in his favour? Is such a confession admissible? Can the converse be a logical corollary of. Article 38? The very first case that can be referred to in this regard, is Pitamber where a full bench of the Bombay High Court held that "there is not anything ... in the Indian Evidence Act ... that would justify us in excluding such evidence when sought to be given on behalf of the co-accused, provided it be relevant." Hasil is the most important case on the question as it was frequently referred to and consistently followed in later cases by courts not only in Pakistan, but in India also. In Hasil , A division bench of the Lahore High Court held: "The prohibition contained in section 25 [of the Evidence Act, 1872] can be treated as applying only to confessions which are to be proved as against the accused, that is, in support of the prosecution case, and cannot apply to statements on which the accused himself wishes to rely in connection either with his conviction or his sentence." Similar views were expressed in Lal Khan, Ghulam Abbas and Muhammad Yaqub. 27. The legal position as to the scope and purpose of Article 38, QSO is thus well settled now. This Article prohibits the admisibility of a confession made to a police officer if proved against the accused but does not bar the use of it by the accused in his own favour . The Legislature cannot be attributed by implication the intent to deprive an accused from his right to make use of any of his statements, if they are relev ant and admissible under any provision of the QSO. Article 38 has been enacted for the benefit of the accused, to eradicate the apprehension that Police may misuse their extensive powers if confessions made to them are made admissible in evidence, against the accused. A provision enacted for the benefit of the accused cannot be construed to his detriment. Bar of Section 162, Cr . P. C. 28. Having come to the conclusion that the statement made by the petitioner to the investigating officer as his first version of the alleged occurrence is recorded under section 161, Cr.P.C., the question that arises for determination is how can it be used in favour of the accuse d in view of the restriction prescribed by Section 162, Cr.P.C.? Section 162 states as under: S.162 Statement to police not to be signe…
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