Khadim Hussain vs State S — 2024 YLR 2247 FEDERAL-SHARIAT-COURT

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Khadim Hussain VS State S. 17(4)---Penal Code (XLV of 1860), Ss. 202 & 412---Criminal Procedure Code (V of 1898), S. 164---Harrabah, intentional omission to give information of offence by person bound to inform, dishonestly receiving property stolen in the commission of dacoity---Appreciation of evidence---Confessional statements of witnesses---Infirmities---Accused were charged for committing murder of the brother and nephew of the complainant during dacoity---Record showed that the statements of complainant and a witness, not produced, were recorded under S.164, Cr.P.C---Such statements revealed that at the time of recording of the said statements the accused were not present---No notice or document for production of the accused before the Judicial Magistrate was brought on record and it appeared that the purported statements under S.164, Cr.P.C, of the complainant and a witness (not examined) were recorded without giving them any notice despite them being in custody---Such fact of them being in custody before recording the alleged statements of the complainant and witness (not examined) was also admitted by Investigating Officer---Subsection (1-A) of S.164, Cr.P.C, envisaged that such statement was to be recorded by Magistrate in the presence of the accused, and the accused was to be given an opportunity of cross-examining the witness making the statement---Section 265-J, Cr.P.C, provided that the statement of a witness duly recorded under S.164, Cr.P.C, if it was made in the presence of the accused and if he had notice of it and was given an opportunity of cross-examining the witness, may, in the discretion of the Court, if such witness was produced and examined, be treated as evidence in the case for all purposes---Moreover, the Judicial Magistrate, before whom, the aforesaid statements under S.164, Cr.P.C, were recorded, was also not examined by the prosecution although his examination was essential so as to substantiate the recording of such statements of the witnesses before him---In such view of the matter, the subject statements under S.164, Cr.P.C, of the complainant and a witness (not examined) had no value in the eye of law---Appeal against conviction was accordingly allowed.

Khadim Hussain vs State S — 2024 YLR 2247 FEDERAL-SHARIAT-COURT

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