MUHAMMAD RIZWAN vs State Ss — 2022 YLRN 210 LAHORE-HIGH-COURT-LAHORE

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MUHAMMAD RIZWAN VS State Ss. 365-a, 170 & 171---anti-Terrorism act (XXVII of 1997), S. 7---Criminal Procedure Code (V of 1898), Ss. 265-J & 164---Kidnapping or abduction for extorting property, valuable security, etc., personating a public servant, wearing garb or carrying token used by public servant with fraudulent intent, act of terrorism---appreciation of evidence---Power to record statements and confessions---Scope---Prosecution case was that wife of complainant along with accused persons extorted Rs. One Crore from him and extended threats of taking his life---During trial the prosecution case was mainly structured upon the examination-in-chief of complainant but his death before the cross-examination gave rise to a legal intricacy and it called for in-depth indulgence---Examination-in-chief of complainant was recorded but the case was adjourned as the defense counsel requested for an opportunity to prepare his brief---Subsequent thereto complainant could not appear in the witness box so as to be cross-examined by the defense and died natural death---During investigation, a statement under S.164, Cr.P.C of complainant was recorded by Judicial Magistrate---In the impugned judgment, the anti-Terrorism Court placed explicit reliance upon 164, Cr.P.C. statement of the complainant and apparently by treating it as substantive evidence handed down guilty verdict to all the accused persons---Trial Court under erroneous legal notion treated 164, Cr.P.C. statement of complainant as admissible through necessary implication of S. 265-J, Cr.P.C.---Language of S. 265-J, Cr.P.C., was explicit in sense and sheded no ambiguity that statement of a witness under S. 164, Cr.P.C. recorded during investigation could only be treated as evidence, firstly if it was recorded in presence of accused, secondly if the accused had prior notice of it, thirdly if he was given an opportunity of cross-examination, fourthly if such witness was produced and examined during trial---Police through application requested the Judicial Magistrate for recording the statement of complainant under S.164, Cr.P.C. and the needful of recording such statement was done---Nothing as such was available on record to gather that the accused in custody were served with some notice about the recording of such statement, thus the condition precedent of "if he had notice of it" postulated in S. 265-J, Cr.P.C. remained unfulfilled---Even otherwise, cross-examining a witness was essentially a right of accused to be provided with all fairness and seriousness---Though accused cross-examined complainant, but the fact remained that they had no prior knowledge about the exact nature of such statement and indeed were taken by surprise---Even the case diaries and the deposition of Investigating Officers were in eternal silence about the serving of a notice upon the accused persons so as to intimate them about the 164, Cr.P.C. statement to be recorded on the following day---Serving of a notice in accordance with S. 265-J, Cr.P.C. was not a simple formality, rather essentially a legal requirement which if not fulfilled was likely to entail consequences of discarding such incriminating evidence---Non-adherence to the mandatory provision of serving a notice before recording 164, Cr.P.C. statement in the case left not even least prospect of treating it as evidence---While being examined under S. 342, Cr.P.C, no question from the accused persons was asked about the 164, Cr.P.C. statement which inescapably was the mainstay of the prosecution case---Examination of an accused under S. 342, Cr.P.C., after the closure of prosecution evidence was an integral part of the trial and any flaw divulging therefrom was destined to have an adverse significance for prosecution case--- Circumstances established that the guilt of the accused persons remained unproved and they were handed down guilty verdict despite the prosecution case was bereft of sufficient proof---appeal was allowed and accused were acquitted by setting aside convictions and sentences recorded by the Trial Court.

MUHAMMAD RIZWAN vs State Ss — 2022 YLRN 210 LAHORE-HIGH-COURT-LAHORE

Case information

Judgment text as reported