Muhammad Naveed Versus State

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:

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 framework anchored in rehabilitation rather than retribution. It emphasized that the juvenile justice system under the JJSA is shaped by constitutional guarantees, particularly Article 25(3), the Principle of Policy under Article 35, and Pakistan s international commitments under the UNCRC. The Court noted that a range of factors underscores the need for a special justice system for juveniles that prioritizes their reintegration and social development over incarceration. These include juveniles lack of maturity, propensity for risk-taking, susceptibility to peer influence, and vulnerabilities such as intellectual disabilities, mental illness, and victimization. Drawing on the concept of therapeutic jurisprudence , the Court explained that the JJSA is based on a rehabilitative and restorative approach rather than a retributive one. 7 It aims to correct and guide rather than punish, to help children in conflict with the law reintegrate into society. 8

22.The JJSA classifies offences into three categories: minor, major, and heinous. 9 Section 6(3) states that where a juvenile is arrested or detained for the commission of a minor or a major offence, he shall be treated as if he was accused of commission of a bailable offence. Section 6(4) provides that where a juvenile above the age of sixteen is arrested or detained for a heinous offence, the Juvenile Court may withhold bail if it finds reasonable grounds to believe that he is involved in its commission. In contrast, section 6(5) stipulates that any juvenile, regardless of age, who has been detained for a continuous period exceeding six months without conclusion of trial shall be released on bail, unless the delay is attributable to the juvenile himself. In Mehran , the Supreme Court ruled that while section 6(4) deals with the matter of bail on merits, section 6(5) provides a distinct statutory ground for bail based solely on delay. Since minor and major offences are treated as bailable under section 6(3), the rigour of section 6(5) applies only to juveniles accused of heinous offences. The Supreme Court further held that a juvenile detained for a heinous offence is entitled to post-arrest bail as of right, whether below or above sixteen years of age, if the requirements of section 6(5) are met.

23.The Petitioner has produced a copy of his B-Form issued by NADRA, which shows that he was 15 years and nine months old at the time of the alleged occurrence. In Sahib Ullah v. The State (2022 SCMR 1806), the Supreme Court considered the case of a juvenile accused of offences under sections 302, 324, 212, and 34, P.P.C, who was exactly sixteen years old on the date of the offence. The Court held that section 6(4) of the JJSA applies only to juveniles above sixteen, and that those aged sixteen or below fall within the scope of section 6(3), even if accused of heinous offences. It observed:

24.Applying the above interpretation to the present case, the Petitioner, being below sixteen at the relevant time, his case falls squarely within the ambit of section 6(3) of the JJSA. Accordingly, he is to be treated as if charged with a bailable offence.

25.In view of the Petitioner s age, the nature of the material on record, and the statutory scheme governing bail in such cases, this application is accepted . The Petitioner is admitted to post-arrest bail, subject to his furnishing a bail bond in the sum of Rs. 200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the trial court.

JK/M-72/L Application allowed.

1 The proviso to section 161(1), Cr.P.C. mandates that a statement of a women against whom an offence under section 336-B, section 354, section 354-A, section 376 or section 509 of the Pakistan Penal Code, 1860 (Act XLV of 1860) is alleged to have been committed or attempted, shall be recorded by an investigating officer in presence of a female police officer or a female family member or other person of her choice.

2 Article 140 of the Qanun-e-Shahadat, 1984 corresponds to section 145 of the Evidence Act 1872.

3 Articles 46(1) and 40 of the Qanun-e-Shahadat 1984 correspond to sections 32(1) and 27, respectively, of the Evidence Act, 1872.

4 Articles 38 to 40 of the Qanun-e-Shahadat, 1984 correspond to sections 25 to 27 of the Evidence Act, 1872.

5 C.M.A. No.3986 in C.M.A. No.2939 of 2017 in Constitutional Petition No.29 of 2016 etc. decided on 20th June, 2017.

6 This provision has since been replaced by section 180(4) of the Bharatiya Nagarik Suraksha Sanhita, 2023, which came into force on 1 July 2024.

7 per Syed Mansoor Ali Shah J. The Court observed that the JJSA embodies therapeutic jurisprudence (David B. Wexler), which promotes law s role in the emotional and psychological rehabilitation of juveniles. The Court distinguished between juvenile justice (focused on crimes and rehabilitation) and child justice (broader protection of all children s rights), both informed by the UNCRC s standards. It held that public safety is better served through reintegration rather than incapacitation, and that the JJSA modifies the ordinary criminal law to ensure socially responsive outcomes for juveniles.

8 See also Khawar Kayani v. The State and others (PLD 2022 SC 551), where the Court underscored that the juvenile justice system is primarily rehabilitative and restorative in nature; that it rests on the best interest of the child and ensures fulfillment of his basic rights and needs, identity, social well-being, physical, emotional and psychological development.

9 Section 2 of the Juvenile Justice System Act 2018 defines them as follows: