Mohib Ali vs State Ss — 2024 YLR 2642 LAHORE-HIGH-COURT-LAHORE

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Mohib Ali VS State Ss. 302(b), 364-a, 376 & 34---Criminal Procedure Code (V of 1898), S. 164---Qatl-i-amd, kidnapping or abducting a minor person, rape, common intention---appreciation of evidence---Confessional statement of accused---Infirmities---accused was charged that he along with his co-accused abducted the minor daughter of complainant, committed rape with her and then murdered her by strangulation---In the present case, the prosecution was left only with the confession made by accused---Statement of complainant showed that he had seen the accused in police custody for the first time after 4/5 days of the occurrence which meant by or before 05.12.2010 accused was with the Investigating Officer---Even witness in cross-examination categorically replied that accused was arrested on the day of recovery of dead body---In such circumstances, prosecution itself had confirmed that the accused was arrested much earlier to 17.01.2011 which meant that he remained under illegal confinement since the actual day of his arrest, so on such ground alone the confession had lost its worth---as per record, Magistrates one after the other committed serious illegalities while passing the orders on the repeated requests of the Investigating Officer---On the very first day (18.01.2011) when the accused was produced before the Magistrate, he was supposed to proceed in the manner as prescribed under S.164, Cr.P.C. read with the relevant Rules and Orders of the High Court---after formulating the questions and taking their answers, he could declare that the accused seemed to be under pressure and in that eventuality Magistrate was not supposed to return accused's custody to the Investigating Officer but to send him to Jail and to call him again at an appropriate date according to his own satisfaction so as to find out whether there still was or not any pressure or influence on accused---In any case even thereafter, accused had to be sent to Jail and no authority was vested with the Magistrate to hand over accused's custody to the Investigating Officer---Similarly, the Duty Magistrate could not adjourn the matters by assigning so-called reasons for the arrest of co-accused, issuance of notice to him or asking the accused to engage an advocate---If the first Magistrate committed illegality, at least second Magistrate (Duty) on 22.01.2011 and 26.11.2011 could have done the right thing instead of following the same illegality made by the first Magistrate---appeal against conviction was allowed, in circumstances.

Mohib Ali vs State Ss — 2024 YLR 2642 LAHORE-HIGH-COURT-LAHORE

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