Syed RIZWAN AHMED RIZV1 vs THE STATE
The applicant sought the quashment of criminal proceedings pending against him before the trial court, following his arrest for alleged involvement in the transportation of heroin powder. The prosecution's case against the applicant relied solely on the disclosure statement made by a co-accused to the police during the investigation. The core legal question was whether criminal proceedings could be maintained when the sole evidence against an accused is an inadmissible statement made by a co-accused to the police. The Court held that a disclosure statement made by a co-accused to the police during an investigation does not constitute admissible evidence and cannot support a conviction. Finding that the prosecution had failed to collect any other evidence and that continuing the trial would be an abuse of the court's process, the Court allowed the application. The principle laid down is that where the prosecution's case rests entirely on inadmissible evidence, such as a co-accused's statement to the police, the proceedings against the accused are liable to be quashed under the inherent powers of the High Court.
- Is a disclosure statement made by a co-accused to the police during an investigation admissible evidence against another accused?
- Can criminal proceedings be quashed under Section 561-A of the Code of Criminal Procedure 1898 when the prosecution has no admissible evidence against the accused?
- Does the continuation of a trial based solely on inadmissible evidence constitute an abuse of the process of the court?
- Section 265-K, Code of Criminal Procedure 1898
- Section 561-A, Code of Criminal Procedure 1898
- Section 169, Code of Criminal Procedure 1898
ORDER
1. Applicant Syed Rizwan Ahmed Rizvi, was arrested by Field Investigating Officer Jahangir Khan of Pakistan Narcotics Control Board, on 28-l-1994 in a case registered vide F.I.R. No.2 of 1994 of Police Station P.N.C.B. (F.I.U-I), Gulshan-e-Iqbal Karachi. The facts disclosed in the F.I.R. Are to the effect that on 28-1-1994 S.I. Jahangir Khan learnt by spy information that one person was to pass through Mauripur Road, Gulbai Chowk in white car carrying heroin powder with himself. On this information S.I. Jahangir Khan and others staff of P.N.C.B. In company of private witness Syed Shaukat A.I arranged a raid and succeeded in apprehending a Toyota Corrola car. One person by name Khalid Khan son of Haji Shah Muhammad was: found sitting in the car and on search of the car 40 bags containing 40 Kgs: of heroin powder were recovered. During the investigation, police interrogated Khalid Khan and on his disclosure that he was taking this heroin to the present applicant who had to transport the same to some foreign country; the applicant was arrested- by the police. Finally the challan was produced in the Court of Sessions Judge Karachi, West against Khalid Khan and the applicant and the case was transferred to the Court of IIIrd Additional Sessions Judge (Hudood) Karachi, West. The case is pending trial there. The present applicant moved an application under section 265-K, Cr..P.C. In the Court of IIIrd Additional Sessions Judge Karachi, West, which was rejected and the applicant being aggrieved by that order has moved this criminal miscellaneous application under section 561-A, Cr.P.C. The application was admitted for regular hearing and today the learned counsel for the applicant as well as the learned counsel for the State have been heard in detail. The contention of the learned counsel for the applicant is that the only piece of evidence on which the applicant has been challaned, is the statement by co- accused Khalid Khan who was found in possession of the heroin powder at the time of his arrest.
2. The contention of the learned counsel for the applicant is that such statement of co-accused before the Investigating Officer is sort of an admission which does not amount to evidence as it amounts to a statement of accused before the police during investigation. The learned counsel for the applicant argued that the police has failed to collect any other evidence against the present applicant and under such circumstances there was no evidence at all against him. Learned counsel for the applicant has also pointed out from the challan that on similar disclosure of co- accused Khalid Khan, another person by name Muhammad Amin was arrested but police released him under section 169, Cr.P.C. While on similar evidence the applicant has been challaned. Thus the police in this case has misused the authority entrusted by law to it and has challaned the applicant malafidely. Learned counsel for the applicant has relied upon the cases reported in 1993 PCr.LJ 1440 and 1977 SCMR page 292. The case reported in 1977 SCMR page 292 is on the same footing as the present case is. In that case the quashment application which was dismissed in limine by the High Court was allowed by the Supreme Court. It was held to the reported case by the Supreme Court that the disclosure by a co-accused to the police implicating himself was not admissible evidence, and therefore, the proceedings against such accused were quashed. The learned counsel appearing for the State has, however, opposed the application but on inquiry from the Court as to what other evidence has been collected by the police against the applicant, has candidly replied that excepting the disclosure by co-accused Khalid Khan that he was carrying, the heroin powder for the present applicant, the police has not collected any other evidence against the applicant.
3. The prosecution case entirely rests on this evidence which according to me cannot result in conviction. The question is if the case against the applicant is allowed to remain on file of the trial Court, will the prosecution be able to prove the same so that it may result in conviction? I do not find that the material available with the prosecution against the applicant warrants the result of the applicant in the conviction. Thus, it will be simply abuse of the process of the Court if the proceedings against the applicant are allowed to continue in the trial Court. Consequently this criminal miscellaneous application is allowed and the proceedings against the present applicant in the trial Court, are hereby quashed under section 561-A.Cr.P.C.
4. The observations in this order will, however, not affect the case of the co-accused and the prosecution will be at liberty to lead any evidence which may be available against the co-accused.
5. The stay of proceedings earlier ordered stands vacated and the proceedings shall continue against the remaining accused.
6. A copy of this order may be sent to the head of the P.N.C.B, to apprise him of the lapse on part of the Investigating Officer in this case who has not cared to collect any other evidence against the applicant. It appears that he is not aware of the legal position that admission of crime before the police by the arrested accused during investigation is not admissible evidence. The P.N.C.B, may take necessary steps to apprise their Investigating Officer of the legal position, and may consider taking action against the incumbent for having shown laxity in this case.