GHULAM SARWAR Versus THE STATE

Appeal in hand bearing number Jail Criminal Appeal 97/1 of 1996 is another appeal which came before this Court after the judgment was passed in Jail Criminal Appeal No.94/1 of 1994 (Mehmood Akhtar v. The State). This is also a symbol of slipshod judgment passed by the same Judicial Magistrate Section 30, Attock on 7-4‑1996 who had passed the impugned judgment in Jail Criminal Appeal No.94/1 of 1996.

2. As usual the police party at Attock Khurd Check Post apprehended the appellant and recovered 1‑1/2 kilogram opium and one kilogram of Charas on 5‑11‑1995. The Murasala was incorporated into F.I.R. No.1241 of 1995, Police Station Attock Khurd, District Attock. After formal charge two prosecution witnesses were examined by the trial, statement of the appellant/ accused under section 342, Cr.P.C. was recorded on 7‑4‑1996 and on the same day the impugned judgment was passed.

3. The most important and glaring but alarming procedure adopted by the learned Magistrate has shocked this Court. Some of the aspects inter alia can be summarized as under:‑‑

(i) P.W.1 Ghulam Rabbani was examined on 24‑3‑1996 as marginal witness and P.W.2 Sana Ullah Khan was examined on 7‑4‑1996 who, in the capacity of Moharrir, had kept the material in the police station and had sent the sample to the chemical examiner. The report was received as positive but the said report was not exhibited in the proceedings through any witness. Even the Investigating Officer was not examined on this point. Therefore, the said report could not be taken into consideration.

(ii) Instead of examining any other witness the learned Magistrate recorded the statement of the appellant/accused under section 342, Cr.P.C. which runs as under:‑‑

These questions and answers leave no doubt for any sensible person to observe that the learned Magistrate even does not know the basic difference between the statements under section 342, Cr.P.C. and a statement under section 164, Cr.P.C. He recorded the statement in such manner as he was recording confession of an accused under section 164, Cr.P.C. instead of recording the statement under section 342, Cr.P.C. And it was the statement on the basis of which the appellant was convicted which was totally illegal because a statement under section 342, Cr.P.C. cannot be treated a statement under section 164, Cr.P.C. If the accused appellant was ready to make confession at that stage then the learned Magistrate would have asked him as to why he had pleaded not guilty to be on I 1‑1‑1996. The learned Magistrate could easily find out the circumstances to make an opinion whether the accused/appellants had volunteered himself or he was forced to confess his crime. In the absence of any such finding it is not possible for me to believe as was observed by the learned Magistrate that:

"Today the accused volunteered himself to make his statement which Was recorded under section 342, Cr.P.C. The accused confessed the charge repented on his act and begged for pardon. The prosecution case now stands proved against the accused. "(Underlining in my own).

This Court cannot put a seal of legalization on this alarming procedure because if it is treated to be legal then several persons can be ordered to be hanged on their confessions in such manners without observing the necessary requirement of section 164, Cr.P.C. which were particularly not observed in this case too even if it is treated as a statement under section 164, Cr.P.C.

4. It was the duty of the Magistrate to bring on record the report of chemical examiner through the Investigation Officer or any other witness but it appears that he was not aware of the consequences of not producing the said report. Neither the learned Magistrate was spiritual divine nor the witnesses had magical powers to prove in the air, in the absence of any report from chemical B examiner, that the material recovered from the appellant was nothing but intoxicant. It is also important to point out that the judgment does not show any where as to whether the accused had pleaded guilty under Article 3 or under Article 4 of the Prohibition Order. These lacunae are un-ignorable in the particular circumstances as discussed above.

5. In the light of above discussion sentence passed on the appellant by the learned Magistrate is not sustainable on any ground whatsoever. The said sentence is, therefore, set aside particularly when there is no mention of any Article of the Prohibition Order or section of Penal Code under which he was convicted and more particularly when no question was put by the learned Magistrate regarding the piece of evidence to be made the base of conviction while recording the statement under section 342, Cr.P.C. The appeal is thus allowed, the conviction and sentences are set aside and the appellant is acquitted of the charge. He is ordered to he released forthwith if not required in any other cognizable offence.

N.H.Q./1060/FSC Appeal allowed.