GUL HASSAN BROHI Versus PROVINCE OF SINDH
1. MUHAMMAD HUSSAIN ADIL KHATRI, J.‑‑‑ On 17‑7‑1977, when the petitioner, who was then A.S.I. at Police Station Jamesabad, was sitting outside the aforesaid Police Station, Anti‑Corruption Police party, headed by Inspector, arrived there accompanied by a Magistrate, arrested him and P.C. Muhammad Tayyab on the allegations that one Warayal Khan son of Fateh Muhammad Bangiani had lodged report against him on, that very day, alleging that the Jamesabad Police had illegally arrested participants of a marriage ceremony from Mirwah Town and were demanding Rs.500 as illegal gratification for the release of each person. On search nothing was recovered from the petitioner by the S.H.O. but, however, a sum of Rs.900 was recovered from P.C. Muhammad Tayyab. This amount was alleged to have been paid as illegal gratification for the release of one Ali Khan.
2. The petitioner and the aforesaid P.C. Muhammad Tayyab were challaned before the Summary Military Court No.VI for an offence under section 5(1) of the Prevention of Corruption Act, 1947 and convicted. The petitioner was awarded sentence of R.I. for one year and 10 stripes m public and P.C. Muhammad Tayyab was sentenced to suffer R.I. for b months and a fine of Rs.2,000. However, subsequently the petitioner was exempted from the punishment of stripes.
3. The present petition has been filed assailing the aforesaid conviction.
4. We have heard Mr. Sabihuddin Ahmed, learned counsel for the petitioner and Mr. K.M. Nadeem, learned A.A.‑G., Sindh and Mr. Ikram Ahmed Ansari, learned Standing Counsel for the respondents.
5. It is contended that (1) the petitioner has been convicted on the basis of the so‑called confession of the guilt by the co‑accused made in his statement under section 342, Cr.P.C. which was not recorded in presence of the petitioner and even otherwise is exculpatory statement and (2) that it is a case of no evidence.
6. The learned counsel for the petitioner has relied on Rule 112 of the Pakistan Army Act Rules which provides that subject to the provisions of the Act, the rules of evidence in proceedings before the Court Marshal shall be the same as those which are followed in Criminal Courts. Rule 13 of the Pakistan Army Act Rules provides that the evidence of the witness against or for the accused shall be taken down in writing in the presence and hearing of the accused. Sub‑rule (4) provides that the accused may put questions in cross-examination to any witness and the questions with the answers shall be added in writing with the evidence taken down.
7. So far as the evidence of co‑accused P.C. Muhammad Tayyab is concerned, it was not recorded in the manner provided and the petitioner was not given any opportunity to cross‑examine the said co‑accused.
8. Apart from above, .the statement of the co‑accused P.C. Muhammad Tayyab cannot be called confessional as it is self‑exculpatory. In the case of Parvez Iqbal and 2 others v. The State P L D 1976 Kar. 583, it has been observed that a self‑exculpatory confession cannot be regarded as a confession and that such confession is hardly of any value. It has been further observed as under:‑‑
9. "Upon consideration of the authorities we are inclined to hold that section 30, Evidence Act, does not specify the form, the confession may take. It may be judicial or extra judicial. Judicial confession is one which is recorded in the manner laid down by sections 164 and 364, Cr.P.C. while the extra‑judicial confession may take the form of a document or other statement. Such document may be filed as the statement made in the course of the trial. Section 30 provides an exception to the rule that an admission can only be used against its maker under section 21 of the Evidence Act. Therefore, in construing section 30 of the Evidence Act regard must be had to the fact that the confession, which is sought to be used against the co‑accused like any other piece of prosecution evidence, must be proved before the prosecution closes its side, so as to provide an opportunity to the co-accused to rebut it. This being the minimum of a fair trial, the key word `proved' must have relation to the stage of the trial otherwise it cannot be used in evidence against him. Concluding, therefore, the implication cannot be on the meaning of the word `proved' in section 3 of the Evidence Act."
10. Their Lordships have then observed as under:‑‑
11. "....Therefore, the use of such confession, which has taken the form of statement, cannot be denied, but the question nonetheless,, remains as to its applicability to the others so that it can be termed as pari delicto. If not, then it cannot be used against the co‑accused."
12. This view was approved in the case of Zulfiqar Ali Bhuto v. The State reported in P L D 1979 SC 53, wherein it was held that the exculpatory confessional statement of the prosecution witness cannot be treated as confession for the purpose of section 30 of the Evidence Act and was rightly 'ruled as such by the High Court and excluded from consideration against the accused, for the reason that the accused had no opportunity of rebutting that statement, as it could not be formally put to him in terms of section 342 of the Criminal Procedure Code,
13. There is nothing on the record to show that the said statement was recorded in presence of the petitioner. The above statement was not even put to the petitioner as required under section 342, Cr.P.C.
14. The proceedings against the petitioner were in absolute violation of rules 13 and 112 of the Pakistan Army Act Rules and stood vitiated.
15. It is settled law that when the accused has not been given opportunity to cross‑examine the co‑accused; who has given statement incriminating him or where the attention of the accused is not drawn to the incriminating circumstances on which the prosecution relies for conviction, the trial is vitiated. Reference may be made to Muhammad Akbar Khan Bugti v. The State P L D 1967 Kar. 186 and Jafar Alain Choudhury v The State 1969 P Cr. L J 259.
16. It was next contended that the Investigating Officer of the case was not examined by the prosecution and as such great prejudice has been .caused to the petitioner. Learned counsel relied on the cases of Muhammad Yaqoob v. The State 1981 P Cr. L J 693, Muhammad Abbas v. The State 1972 P Cr. L J 649 and A.K.M. Reza and others v. The State P L D 1958 Dacca 111. In the first case it was observed that giving up the evidence of Investigating Officer leaves the entire investigation unproved and causes prejudice to defence. In the second case it was observed that non‑examination of the Investigating Officer, who had allegedly seized the stolen articles, had seriously prejudiced the defence of the accused as he was deprived of his right of cross‑examination of the Most important witness and for such reason the conviction was set aside. In both the aforesaid cases the reference was made to the last cited case of A.K.M. Reza and others.
17. We are in respectful agreement with the views expressed in the above mentioned authorities. The rule laid down therein applies with all its force to the present case wherein the evidence of the Investigating Officer was of greater importance keeping in view the fact that the said Officer had allegedly recovered the amount from the person of co‑accused Muhammad Tayyab, p which was not tainted, and the petitioner was, instead roped in for receiving illegal gratification.
18. Following the rule laid down in the case of Federation of Pakistan v. Ghulam Mustafa Khar P L D 1989 SC 26, we had allowed this petition as the E proceedings before the Summary Military Court suffered from. defects of jurisdiction and were mala fide in law.
19. The above are the reasons for the short order dated 25th March; 1992, whereby the petition was allowed.
20. N.H.Q./G‑308/K Petition allowed.